Exhibit 10.7
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (this "Agreement"), dated as of __________, is made and
entered into by and between Xxxxxx Xxxx Educators Corporation ("HMEC"), a
Delaware corporation (the "Parent Company"), Xxxxxx Xxxx Service Corporation
("HMSC"), an Illinois corporation (the "Employer Company"), (HMEC and HMSC
collectively referred to as the "Company"), and __________ (the "Executive").
WHEREAS, the Company considers the maintenance of a sound and vital senior
management to be essential to protecting and enhancing the interests of the
Parent Company and its subsidiaries, including the Employer Company,
hereinafter collectively referred to as the "Group";
WHEREAS, the Company recognizes that, as is the case with many publicly
owned corporations, the possibility of a change in control of the Group may
arise and that such possibility, and the uncertainty and questions which it
may raise among senior management, may result in the departure or
distraction of senior management personnel to the detriment of the Group;
and
WHEREAS, accordingly the Company has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's senior management to their assigned
duties and long-range responsibilities without distraction in circumstances
arising from the possibility of a change in control of the Group; and
WHEREAS, the Company believes it important and in the best interests of the
Group, should the Group face the possibility of a change in control, that
the senior management of the Company be able to assess and advise the Board
of Directors of the Company whether such a proposed change in control would
be in the best interests of the Group and to take such other action
regarding such a proposal as the Board of Directors might determine to be
appropriate, without senior management being influenced by the
uncertainties of their own employment situations; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Company in the event of any actual or threatened change in control of the
Group, the Company has determined to set forth the severance benefits which
the Company will provide to the Executive under the circumstances set forth
below;
NOW THEREFORE, in consideration of the foregoing recitals, and the
mutual covenants and agreements contained in this Agreement and for other
good and valuable consideration, the parties hereto agree as follows:
1. Definitions Terms not otherwise defined in this Agreement shall have the
meanings set forth in this Section 1.
(a) Base Year The "Base Year" shall be the twelve (12) month period immediately
preceding a Change in Control.
(b) Cash Compensation "Cash Compensation" shall mean the sum of (I) the
Executive's annual base salary and (ii) the cash bonus paid to the Executive
under the Xxxxxx Xxxx Incentive Compensation Program (or similar program that
may replace the Incentive Compensation Program) for whichever of the five (5)
fiscal years immediately preceding the year in which the Date of Termination
occurs that will result in the highest amount of Cash Compensation.
(c) Cause For purposes of this Agreement, "Cause" shall mean serious, willful
misconduct by the Executive such as, for example, the commission by the
Executive of a felony arising from specific conduct of the Executive which
reasonably relates to his qualification or ability (personal or professional) to
perform his duties to the Company or its Subsidiaries or a perpetration by the
Executive of a common law fraud against the Company or its Subsidiaries.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than two-thirds of the entire membership of the Company's Board of
Directors at a meeting of the Board called and held for the purpose of
considering his termination for Cause (after reasonable notice to the Executive
and an opportunity for the Executive, together with the Executive's counsel, to
be heard before the Board). The resolution of the Board shall contain a finding
that in the good faith opinion of the Board the Executive was guilty of the
conduct set forth above and specifying the particulars thereof in detail.
Notwithstanding the foregoing, the Executive shall have the right to contest his
termination for Cause.
(d) Change in Control A "Change in Control" shall be deemed to have occurred if
(I) there shall be consummated (1) any consolidation or merger of HMEC in which
HMEC is not the continuing or surviving corporation, or pursuant to which shares
of HMEC's Common Stock would be converted into cash, securities or other
property, other than a merger of HMEC in which no HMEC shareholder's ownership
percentage in the surviving corporation immediately after the merger is less
than such shareholder's ownership percentage in HMEC immediately prior to such
merger by ten percent (10%) or more, or (2) any sale, lease exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of HMEC; (ii) the shareholders of HMEC approve
any plan or proposal for the liquidation or dissolution of HMEC which is a part
of a sale of assets, merger, or reorganization of HMEC or other similar
transaction; (iii) any "Person" as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is or
becomes, directly or indirectly, the "beneficial owner," as defined in Rule
13d-3 under the Exchange Act, of securities of HMEC that represent 51% or more
of the combined voting power of HMEC's then outstanding securities; or (iv) a
majority of the members of the Company's Board of Directors are persons who are
then serving on the Board of Directors without having been elected by the Board
of Directors or having been nominated by the Company for election of its
shareholders.
-2-
(e) Constructive Termination "Constructive Termination" shall mean the following
events:
(1) any material adverse change or diminution in the Executive's duties or
responsibilities to the Group;
(2) any relocation of the Executive from his present work site to another
site more than fifty (50) miles from the present work site;
(3) a diminution in the Executive's annual base salary of more than ten
percent (10%) below the Executive's salary for the Base Year;
(4) a diminution in the Executive's annual cash bonus under the Xxxxxx Xxxx
Incentive Compensation Program (or similar program that may replace the
Incentive Compensation Program) of more than fifty percent (50%) below that
paid to the Executive for the Base Year, except in the event that such
diminution is comparable to the diminution in the cash bonus paid to other
employees of the same business segment as the Executive due to the
performance of that business segment; or
(5) any material diminution in disability, life, accident or health
insurance benefits which the Executive received during the Base Year
(including coverage for dependents);
provided, however, that none of the above shall constitute a Constructive
Termination if the Executive consents to the event.
(f) Date of Termination "Date of Termination" shall mean the date of the Notice
of Termination delivered pursuant to Section 2(b); provided, however, that if,
within thirty (30) days after the Notice of Termination is delivered to the
Executive by the Company, the Executive notifies the Company that a dispute
exists concerning termination of the Executive's employment, the Date of
Termination (except for purposes of Section 1(b)) shall be the date on which the
dispute is finally resolved, either by mutual written agreement of the parties
or by a final judgment, order or decree of a court of competent jurisdiction
(the time for appeal therefrom having expired and no appeal having been
perfected).
2. Termination Following Change in Control
(a) Termination of Employment If a Change in Control shall have occurred while
the Executive is still an employee of the Company, the Executive shall be
entitled to the compensation provided in Section 3 if, within 3 years after the
Change in Control, the Executive's employment is terminated by (i) the Company
without Cause or (ii) the Executive due to Constructive Termination.
(b) Notice of Termination Any purported termination of the Executive's
employment by the Company or the Executive shall be communicated by a Notice of
Termination to the other party in accordance with Section 10 hereof. The Notice
of Termination shall set forth in reasonable detail the reasons for termination
and, if termination is for Cause, the facts and circumstances claimed to provide
a basis for termination of the Executive's employment.
-3-
3. Severance Compensation upon Termination of Employment If the Executive
becomes entitled to compensation pursuant to Section 2(a), then the Company
shall:
(i) pay to the Executive as severance pay in a lump sum, in cash, on the
fifth day following the Date of Termination, an amount equal to 2 times the
Executive's Cash Compensation;
(ii) arrange to provide to the Executive for 2 years (or such shorter
period as the Executive may elect) disability, life, accident and health
insurance substantially similar to those insurance benefits, if any, which
the Executive was receiving immediately prior to the Notice of Termination
(including coverage for dependents at the same per person cost as the
Executive was then paying); and
(iii) pay to Executive a single lump sum on or before the (5th) day
following the Date of Termination (or such earlier date as required by
applicable law) equal to the present value of his accrued benefit as the
Date of Termination under any nonqualified supplemental pension plan
sponsored by the Company. Any benefit paid pursuant to this Section 3(iii)
shall be offset against any amount payable under such nonqualified
supplemental pension plan.
4. Indemnification for Excise Tax
(a) Indemnification In addition to the amounts specified in Section 3, the
Company agrees that it will pay or cause to be paid to the Executive, at the
time specified in paragraph (b) below, an amount in cash (the "Additional
Amount") as determined by the following formula:
Additional Amount = Excise Taxes + Attributable Taxes
"Excise Taxes" shall mean all federal and state excise taxes, if any, payable
under Section 4999 of the Internal Revenue Code (the "Code") and any state
counterparts, with respect to the benefits received by the Executive pursuant to
Section 3 of this Agreement. "Attributable Taxes" shall mean all taxes,
including any federal and state income taxes and any federal and state excise
taxes under Section 4999 of the Code and its state counterparts, that become
payable by the Executive as a result of the receipt of the Additional Amount.
(b) Preparation of Tax Return; Notice to the Company The Company, at its
expense, agrees to supply the Executive with advice from a tax practitioner as
to whether the Executive must reflect an excise tax under Section 4999 of the
Code and any state counterparts on the filing of any income tax return of the
Executive relating to the period or periods in which the Executive received
payments or benefits under this Agreement. If such tax practitioner advises that
such excise tax must be reflected on such tax return, the Executive agrees to so
reflect and, unless such tax was previously withheld from payments to the
Executive, pay such tax and the Company will reimburse the Executive in
accordance with Section 4(a) above as soon as practicable after receipt of proof
of payment (or, in the case of tax that was previously withheld, proof that such
return was filed as required) from the Executive. If such tax practitioner
advises that such excise tax need not be reflected on such tax return, the
Executive agrees to prepare and file his tax return in accordance with such
advice. The Executive shall notify the Company in writing no less than thirty
(30) days prior
-4-
to the time the Executive is required to file each tax return, and shall
promptly provide to the tax practitioner selected by the Company such
information as it may request in connection with establishing the existence of
an obligation to withhold tax pursuant to Section 16 hereof or an obligation
pursuant to this Section 4. If the Executive provides such notice and
information and prepares the relevant tax return as provided in this paragraph
(b), the Company shall indemnify the Executive in accordance with Section 4(a)
of this Agreement for any subsequent assessment of Excise Taxes or Attributable
Taxes by the IRS or any state taxing authority, and any interest, penalties, and
additions to tax directly relating to such Excise Taxes. If the Executive fails
to comply fully with the requirements of this paragraph (b), then the Company's
obligations will not include indemnification or any interest, penalties or
additions to tax. In the event the Executive's liability for Excise Taxes is
determined upon audit by the IRS or the relevant state taxing authority, the
Company shall pay to the Executive the amount determined in accordance with
paragraph (a) and this paragraph (b) at such time as the Company determines that
it no longer desires to contest the Executive's liability pursuant to paragraph
(c); provided, however, that in all events the Company will indemnify the
Executive for interest, penalties and additions to tax, directly relating to
Excise Taxes, which accrue after such time the Company receives notice of a
proposed assessment of Excise Taxes resulting from an audit of the Executive's
tax return.
(c) Duty to Cooperate The Executive agrees to notify the Company promptly in the
event of any audit by the IRS or any state taxing authority in which the IRS or
the state taxing authority asserts that any Excise Tax should be assessed
against the Executive and to cooperate with the Company in contesting (at the
Company's expense) any such proposed assessment. The Executive agrees not to
settle or compromise any such assessment without the Company's consent. The
Executive will promptly provide to the Company all information requested by the
Company in connection with its contest of a proposed final assessment of Excise
Taxes.
5. Mitigation of Damages; Effect of Plan on Other Contractual Rights
(a) The Executive shall not be required to mitigate damages or the amount of any
payment provided for under this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this Agreement
be reduced by any compensation earned by the Executive as a result of employment
by another employer or by retirement benefits received after the Date of
Termination, or otherwise.
(b) The provisions of this Agreement, and any payment provided for hereunder,
shall not reduce any amounts otherwise payable, or in any way diminish the
Executive's existing rights, or rights that would accrue solely as a result of
the passage of time, under any benefit plan, employment agreement or other
contract, plan or arrangement.
6. Term This Agreement shall terminate three (3) years after the date of a
Change in Control. Termination or amendment of this Agreement shall not affect
any obligation of the Company under this Agreement which has accrued and is
unpaid as of the effective date of such termination or amendment.
-5-
7. At-Will Employment Nothing in this Agreement shall confer upon the Executive
any right to continue in the employ of the Company prior to a Change in Control
of the Company or shall interfere with or restrict in any way the rights of the
Company, which are hereby expressly reserved, to discharge the Executive at any
time prior to the date of a Change in Control of the Company for any reason
whatsoever, with or without cause.
8. Successors
(a) The Company will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, expressly,
absolutely and unconditionally to assume and agree in writing 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 or assignment had taken place.
Failure of the Company to obtain such written agreement of any such successor
shall be a breach of this Agreement and shall entitle the Executive to
compensation from the Company in the same amount and on the same terms as the
Executive would be entitled hereunder if such succession had not occurred,
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 in this Agreement, "Company" shall mean the Company as defined above and
any successor or assign to its business and/or assets which executes and
delivers the agreement provided for in this Section 8 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. If the Executive should
die while any amounts are still payable to him hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the Executive's devisee, legatee or other designee or, if
there be no such designee, to the Executive's estate.
9. Governing Law; Arbitration; Attorneys' Fees
(a) This Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Delaware, without giving
effect to its conflict or choice of laws provisions.
(b) If any controversies, disputes or claims arise out of, in connection with,
or in relation to, the interpretation, performance or breach of this Agreement,
all such controversies, disputes or claims shall be settled, at the request of
any party hereto, by arbitration conducted in Springfield, Illinois, in
accordance with the then existing rules of the American Arbitration Association.
The decision rendered by the arbitrators as to all issues of law and fact shall
be final and binding without right of appeal on all parties hereto who receive
notice of such arbitration and the opportunity to participate therein. Judgment
upon any award rendered in such arbitration may be entered by an state or
federal court having jurisdiction over the matter.
-6-
(c) Should any party hereto institute any action or proceeding to enforce any
provision of this Agreement, the prevailing party shall be entitled to receive
from the losing party reasonable attorneys' fees and costs incurred in such
action or proceeding, whether or not such action or proceeding is prosecuted to
judgment.
10. 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 two days after deposit in the mail by United
States registered mail, return receipt requested, postage prepaid, as follows:
if to the Company, to Xxxxxx Xxxx Service Corporation, 0 Xxxxxx Xxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000, attention: Chief Executive Officer (except if such
notice is sent by the Chief Executive Officer, in which case such notice shall
be sent to the attention of the Chairman of the Board of Directors), and if to
the Executive at the address specified at the end of this Agreement. Notice may
also be given at 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.
11. Miscellaneous No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and the Company. 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 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, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
12. Validity 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.
13. Counterparts This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together will
constitute one and the same instrument.
14. Gender In this Agreement (unless the content requires otherwise), use of any
masculine term shall include the feminine.
15. Entire Agreement This Agreement contains the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and
supercedes all previous oral and written and all contemporaneous oral
negotiations, commitments and understandings.
16. Withholding The Company shall withhold benefits otherwise due or payable
hereunder in order to comply with any federal, state, local or other income or
other tax laws requiring withholding with respect to benefits provided to the
Executive pursuant to this Agreement.
-7-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXX XXXX EDUCATORS CORPORATION
By: _____________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
By: _____________________________________________
Name: Xxxxx X. Lower II
Title: President and Chief
Executive Officer
EXECUTIVE
_________________________________________________
___________________
0 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
-8-
