EXHIBIT 10.32
EXECUTIVE CHANGE OF CONTROL AGREEMENT
This EXECUTIVE CHANGE OF CONTROL AGREEMENT ("Agreement") is made as of the
7th day of December, 2001, between CIRCOR, Inc., a Massachusetts corporation
(the "Company"), and Xxxxxxx X. Xxxxx ("Executive").
WHEREAS, the Company presently employs the Executive in which capacity the
Executive serves as a divisional officer of the Company and its Parent (as
defined below); and
WHEREAS, the Board of Directors of the Parent (the "Board") recognizes the
valuable services rendered to the Company, the Parent and their respective
affiliates by the Executive; and
WHEREAS, the Board has determined that it is in the best interests of the
Company, the Parent and their affiliates to encourage in advance the continued
loyalty of the Executive as well as the Executive's continued attention to his
assigned duties and objectivity in the event of a threatened or possible change
in control of the Parent;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
"Cause" shall mean: (a) conduct by Executive constituting a material act of
willful misconduct in connection with the performance of his duties, including,
without limitation, misappropriation of funds or property of the Company or any
of its affiliates other than the occasional, customary and de minimis use of
Company property for personal purposes; (b) criminal or civil conviction of
Executive, a plea of novo contendere by Executive or conduct by Executive that
would reasonably be expected to result in material injury to the reputation of
the Company if he were retained in his position with the Company, including,
without limitation, conviction of a felony involving moral turpitude; (c)
continued, willful and deliberate non-performance by Executive of his duties
hereunder (other than by reason of Executive's physical or mental illness,
incapacity or disability) which has continued for more than thirty (30) days
following written notice of such non-performance from the Chief Executive
Officer; or (d) a violation by Executive of the Company's employment policies
which has continued following written notice of such violation from the Chief
Executive Officer.
"Change in Control" shall mean any of the following:
(a) Any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Act") (other than the
Parent, any of its subsidiaries, any member of the Home Family Group (as defined
herein) or any trustee, fiduciary or other person or entity holding securities
udder any employee benefit plan or trust of the Parent or any of its
subsidiaries), together with all "affiliates" and "associates" (as such terms
are defined in Rule 12b-2 under the Act) of such person, shall become the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Parent representing twenty-five
percent (25%) or more of either (A) the combined voting power of the Parent's
then outstanding securities having the right to voice in an election of the
Parent's Board ("Voting Securities") or (B) the then outstanding shares of
Parent's common stock, par value $0.01 per share ("Common Stock") (other than as
a result of an acquisition of securities directly from the Parent); or
(b) Incumbent Directors (as defined below) cease for any reason,
including, without limitation, as a result of a tender offer, proxy contest,
merger or similar transaction, to constitute at least a majority of the Board;
or
(c) The stockholders of the Parent shall approve (A) any consolidation
or merger of the Parent where the stockholders of the Parent, immediately prior
to the consolidation or merger, would not, immediately after the consolidation
or merger, beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate fifty percent
(50%) or more of the voting shares of the Parent or other party issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (B) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any party as
a single plan) of all or substantially all of the assets of the Parent or (C)
any plan or proposal for the liquidation or dissolution of the Parent.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to
have occurred for purposes of the foregoing clause (a) solely as the result of
an acquisition of securities by the Parent which, by reducing the number of
shares of Common Stock or other Voting Securities outstanding, increases the
proportionate number of shares beneficially owned by any person to twenty-five
percent (25%) or more of either (A) the combined voting power of all of the then
outstanding Voting Securities or (B) Common Stock; provided, however, that if
any person referred to in this sentence shall thereafter become the beneficial
owner of any additional shares of Voting Securities or Common Stock (other than
pursuant to a stock split, stock dividend, or similar transaction or as a result
of an acquisition of securities directly from the Parent) and immediately
thereafter beneficially owns twenty-five percent (25%) or more of either (A) the
combined voting power of all of the then outstanding Voting Securities or (B)
Common Stock, then a "Change of Control" shall be deemed to have occurred for
purposes of the foregoing clause (a).
"Good Reason" shall mean that Executive has complied with the "Good Reason
Process" (hereinafter defined) following the occurrence of any of the following
events: (a) a substantial diminution or other substantive adverse change, not
consented to by Executive, in the nature or scope of Executive's
responsibilities, authorities, powers, functions or duties; (b) any removal,
during the term of this Agreement from Executive of his titles as an officer of
the Parent; (c) an involuntary reduction in Executive's Base Salary except for
across-the-board reductions similarly affecting all or substantially all
management employees; (d) a breach by the Company of any of its other material
obligations under this Agreement and the failure of the Company to cure such
breach within thirty (30) days after written notice thereof by Executive; (e)
the involuntary relocation of the Company's offices at which Executive is
principally employed or the involuntary relocation of the offices of Executive's
primary workgroup to a location more than thirty (30) miles from such offices,
or the requirement by the Company that Executive be based anywhere other than
the Company's offices at such location on an extended basis, except for required
travel on the Company's business to an extent substantially consistent with
Executive's business travel obligations; or (f) a reduction in Executive's
opportunity for annual incentive compensation below the annual incentive
opportunity most recently in effect under the Company's Executive Bonus
Incentive Plan prior to the Change in Control. "Good Reason Process" shall mean
that (i) Executive reasonably determines in good faith that a "Good Reason"
event has occurred; (ii) Executive notifies the Company in writing of the
occurrence of the Good Reason event; (iii) Executive cooperates in good faith
with the Company's efforts, for a period not less than ninety (90) days
following such notice, to modify Executive's employment situation in a manner
acceptable to Executive and Company; and (iv) notwithstanding such efforts, one
or more of the Good Reason events continues to exist and has not been modified
in a manner acceptable to Executive. If the Company cures the Good Reason event
in a manner acceptable to Executive during the ninety (90) day period, Good
Reason shall be deemed not to have occurred.
"Incumbent Directors" shall mean persons who, as of the Commencement Date,
constitute the Board; provided that any person becoming a director of the Parent
subsequent to the Commencement Date shall be considered an Incumbent Director if
such person's election was approved by or such person was nominated for election
by a vote of at least a majority of the Incumbent Directors; but provided
further, that any such person whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of members of the Board or other actual or threatened solicitation of
proxies or consents by or on behalf of a person other than the Board, including
by reason of agreement intended to avoid or settle any such actual or threatened
contest or solicitation, shall not be considered an Incumbent Director.
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"Parent" shall mean CIRCOR International, Inc., a Delaware corporation as
well as its successors by merger or otherwise.
"Xxxxx Family Group" shall mean Xxxxxxx X. Home and the Xxxxxx X. Home
Voting Trust.
2. Term. The term of this Agreement shall extend from the date hereof (the
"Commencement Date") until the first anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the first anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change in Control
occurs during the original or extended term of this Agreement, the term of this
Agreement shall continue in effect for a period of not less than twelve (12)
months beyond the month in which the Change in Control occurred.
3. Change in Control Payment. The provisions of this Paragraph 3 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Parent. These provisions are intended to assure and encourage in
advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall terminate and be of no further force or effect
beginning twelve (12) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within twelve (12) months after the occurrence of the
first event constituting a Change in Control, Executive's employment
is terminated by the Company without Cause as defined in Section 1 or
Executive terminates his employment for Good Reason as provided in
Section 1, then the Company shall pay Executive a lump sum in cash in
an amount equal to one (1) times the sum of (A) Executive's current
Base Salary plus (B) Executive's highest annual incentive compensation
under the Company's Executive Bonus Incentive Plan in the three (3)
immediately preceding fiscal years, excluding any sign-on bonus,
retention bonus or any other special bonus. Such lump sum cash payment
shall be paid to Executive within thirty (30) days following the Date
of Termination; and
(ii) Notwithstanding anything to the contrary in any
applicable option agreement or stock-based award agreement, upon a
Change in Control, all stock options and other stock-based awards
granted to Executive by the Parent shall immediately accelerate and
become exercisable or non-forfeitable as of the effective date of such
Change in Control. In addition, all restricted stock units held by the
Executive pursuant to the Management Stock Purchase Plan shall become
fully vested upon a Change of Control and the Executive shall be
entitled to receive the shares of stock represented by such restricted
stock units. Executive shall also be entitled to any other rights and
benefits with respect to stock-related awards, to the extent and upon
the terms, provided in the employee stock option or incentive plan or
any agreement or other instrument attendant thereto pursuant to which
such options or awards were granted; and
(iii) If the Executive is otherwise eligible for
participation in the Company's Supplemental Executive Retirement Plan
("SERP"), the Executive shall be fully vested in his accrued benefit
under the SERP as of the Date of Termination; and
(iv) The Company shall, for a period of one (1) year
commencing on the Date of Termination, pay such health insurance
premiums as may be necessary to allow Executive, Executive's spouse
and dependents to continue to receive health insurance coverage
substantially similar to the coverage they received prior to the Date
of Termination.
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(b) Additional Limitation.
(i) Anything in this Agreement to the contrary
notwithstanding, in the event that any compensation, payment or
distribution by the Company to or for the benefit of Executive,
whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (the "Severance Payments"),
would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), the following
provisions shall apply:
(A) If the Severance Payments, reduced by the sum
of (1) the Excise Tax and (2) the total of the Federal,
state and local income and employment taxes payable by
Executive on the amount of the Severance Payments which are
in excess of the Threshold Amount, are greater than or equal
to the Threshold Amount, Executive shall be entitled to the
full benefits payable under this Agreement.
(B) If the Threshold Amount is less than (x) the
Severance Payments, but greater than (y) the Severance
Payments reduced by the sum of (1) the Excise Tax and (2)
the total of the Federal, state, and local income and
employment taxes on the amount of the Severance Payments
which are in excess of the Threshold Amount, then the
benefits payable under this Agreement shall be reduced (but
not below zero) to the extent necessary so that the maximum
Severance Payments shall not exceed the Threshold Amount. To
the extent that there is more than one method of reducing
the payments to bring them within the Threshold Amount,
Executive shall determine which method shall be followed;
provided that if Executive fails to make such determination
within 45 days after the Company has sent Executive written
notice of the need for such reduction, the Company may
determine the amount of such reduction in its sole
discretion.
For the purposes of this Paragraph 3, "Threshold
Amount" shall mean three times Executive's "base amount"
within the meaning of Section 280G(b)(3) of the Code and the
regulations promulgated thereunder less one dollar ($1.00);
and "Excise Tax" shall mean the excise tax imposed by
Section 4999 of the Code, and any interest or penalties
incurred by Executive with respect to such excise tax.
(ii) The determination as to which of the alternative
provisions of Paragraph 3(b)(i) shall apply to Executive shall be made
by KPMG LLP or any other nationally recognized accounting firm
selected by the Company (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and Executive
within 15 business days of the Date of Termination, if applicable, or
at such earlier time as is reasonably requested by the Company or
Executive. For purposes of determining which of the alternative
provisions of Paragraph 3(b)(i) shall apply, Executive shall be deemed
to pay federal income taxes at the highest marginal rate of federal
income taxation applicable to individuals for the calendar year in
which the determination is to be made, and state and local income
taxes at the highest marginal rates of individual taxation in the
state and locality of Executive's residence on the Date of
Termination, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes.
Any determination by the Accounting Firm shall be binding upon the
Company and Executive.
4. Unauthorized Disclosures. Executive acknowledges that in the course
of his employment with the Company (and, if applicable, its predecessors), he
has been allowed to become, and will continue to be allowed to become,
acquainted with the Company's and the Parent's business affairs, information,
trade secrets, and other matters which are of a proprietary or confidential
nature, including but not limited to the Company's, the Parent's and their
affiliates' and predecessors' operations, business opportunities, price and cost
information, finance, customer information, business plans, various sales
techniques, manuals, letters, notebooks, procedures, reports, products,
processes, services, and other confidential information and knowledge
(collectively the "Confidential Information") concerning the Company's, the
Parent's and their affiliates' and predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the Company or the Parent except to the extent that (i) Executive
deems such disclosure or use reasonably
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necessary or appropriate in connection with performing his duties on behalf of
the Company and the Parent, (ii) Executive is required by order of a court of
competent jurisdiction (by subpoena or similar process) to disclose or discuss
any Confidential Information, provided that in such case, Executive shall
promptly inform the Company or the Parent, as appropriate, of such event, shall
cooperate with the Company or the Parent, as appropriate, in attempting to
obtain a protective order or to otherwise restrict such disclosure, and shall
only disclose Confidential Information to the minimum extent necessary to comply
with any such court order; (iii) such Confidential Information becomes generally
known to and available for use in the Company's industry (the "Fluid-Control
Industry"), other than as a result of any action or inaction by Executive; or
(iv) such information has been rightfully received by a member of the
Fluid-Control Industry or has been published in a form generally available to
the Fluid-Control Industry prior to the date Executive proposes to disclose or
use such information. Executive further agrees that he will not during
employment and/or at any time thereafter use such Confidential Information in
competing, directly or indirectly, with the Company or the Parent. At such time
as Executive shall cease to be employed by the Company, he will immediately turn
over to the Company or the Parent, as appropriate, all Confidential Information,
including papers, documents, writings, electronically stored information, other
property, and all copies of them provided to or created by him during the course
of his employment with the Company. The provisions of this Paragraph 4 shall
survive termination of this Agreement for any reason.
5. Covenant Not to CompeteIn consideration of the benefits afforded the
Executive under the terms provided in this Agreement and as a means to aid in
the performance and enforcement of the terms of the provisions of Paragraph 4,
Executive agrees that
(a) during the term of Executive's employment with the Company and for
a period of twelve (12) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is engaged in a business that is
competitive with any of the Company's or the Parent's products which are
produced by the Company or the Parent or any affiliate of either entity as of
the date of Executive's termination of employment with the Company, in any area
or territory in which the Company or the Parent or any affiliate of either
entity conducts operations; provided, however, that the foregoing shall not
prohibit Executive from owning up to one percent (1%) of the outstanding stock
of a publicly held company engaged in the Fluid-Control Industry; and
(b) during the term of Executive's employment with the Company and for
a period of twelve (12) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any present or future employee of the Company or the Parent or any
affiliate of either entity to accept employment with Executive or with any
business, operation, corporation, partnership, association; agency, or other
person or entity with which Executive may be associated, and Executive will not
employ or cause any business, operation, corporation, partnership, association,
agency, or other person or entity with which Executive maybe associated to
employ any present or future employee of the Company or the Parent without
providing the Company or the Parent, as appropriate, with ten (10) days' prior
written notice of such proposed employment.
Should Executive violate any of the provisions of this Paragraph, then in
addition to all other rights and remedies available to the Company at law or in
equity, the duration of this covenant shall automatically be extended for the
period of time from which Executive began such violation until he permanently
ceases such violation.
6. NOTICE For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At his home address as shown
in the Company's personnel records;
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If to the Company:
CIRCOR, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Board of Directors of CIRCOR International, Inc.
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.
7. Not an Employment Contract. This Agreement is intended only to provide
those benefits for the Executive as set forth in Paragraph 3 in connection with
a Change of Control. As such, this Agreement is not intended to and does not in
any way constitute an employment agreement or other contract which would cause
the employee to be considered anything other than an employee at will or to in
any way be entitled to any specific payments or benefits from the Company in the
event of a termination of employment not subject to Paragraph 3 of this
Agreement.
8. Miscellaneous. No provisions of this Agreement may be modified, waived,
or discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either 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. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the Commonwealth of Massachusetts (without regard to
principles of conflicts of laws).
9. Validity. The invalidity or unenforceability of any provision or
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. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
10. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 4 or 5 hereof.
12. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company and the Parent
in the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Company and/or the
Parent which relate to events or occurrences that transpired while Executive was
employed by the Company; provided, however, that such cooperation shall not
materially and adversely affect Executive or expose Executive to an increased
probability of civil or criminal litigation. Executive's cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to
act as a witness on behalf of the Company and/or the Parent at mutually
convenient times. During and after Executive's employment, Executive also shall
cooperate fully with the Company and the Parent in connection with any
investigation or review of any federal, state or local regulatory authority as
any such investigation or review relates
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to events or occurrences that transpired while Executive was employed by the
Company. The Company shall also provide Executive with compensation on an hourly
basis (to be derived from the sum of his Base Compensation and Average Incentive
Compensation) for requested litigation and regulatory cooperation that occurs
after his termination of employment, and reimburse Executive for all costs and
expenses incurred in connection with his performance under this Paragraph 12,
including, but not limited to, reasonable attorneys' fees and costs.
13. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
CIRCOR, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------
Xxxxx X. Xxxxx, Xx.
President
EXECUTIVE
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
