10.1(a)
CHANGE OF CONTROL AGREEMENT
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AGREEMENT made at Chicago, Illinois, on November 30, 1996, by and between
UNR Industries, Inc., (the "Company") and Xxxxx Xxxx, (the "Executive").
Recitals
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A. The Executive is currently employed by the Company as Vice President,
Sales and Marketing UNR Xxxx.
B. The Executive and the Company agree that it is desirable that the
Company provide greater employment security to the Executive, and, to
that end, the parties hereby enter into this Agreement.
In consideration of the mutual agreements herein set forth and for good and
valuable consideration, receipt of which is hereby acknowledged the parties
agree as follows:
1. Term of Agreement. Subject to the provisions of paragraphs 2 and 3 of
this Agreement, the term of this Agreement shall be for a three year term (the
"Three-Year Term") commencing on the date hereof.
2. Definitions. For purposes of this Agreement, the following definitions
apply:
(a) "Cause" shall mean (i) an act or acts of personal dishonesty by
Executive which results in personal enrichment of Executive at the expense of
the Company, (ii) violation by Executive of Executive's obligations under
paragraphs 5 or 6 of this Agreement which are willful on the Executive's part
and which are not remedied to the reasonable satisfaction of the Company in a
reasonable period of time after receipt of written notice from the Company, or
(iii) the conviction of the Executive of a felony. Any termination of this
Agreement for Cause shall be communicated by the Company to the Executive in a
notice of termination which shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of this Agreement.
(b) "Change of Control" shall mean the occurrence of any of the following
events:
(i) The "acquisition" after the date hereof by any "Person" (as such
term is defined below) of "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), as in effect on the date hereof) of any securities of the Company
which generally entitles the holder thereof to vote for the election of
directors of the Company (the "Voting Securities") which, when added to the
Voting Securities then "Beneficially Owned" by such Person, would result in such
Person "Beneficially Owning" 50% or more (the "Requisite Percentage") of the
combined voting power of the Company's then outstanding Voting Securities;
provided, however, that for purposes of this paragraph (a), a Person shall not
be deemed to have made an acquisition of Voting Securities if such deemed to
have made an acquisition of Voting Securities if such Person: (i) acquires
Voting Securities as a result of a stock split, stock dividend or other
corporate restructuring in
which all securityholders of the class of such Voting Securities are treated on
a pro rata basis; (ii) acquires the Voting Securities directly from the Company;
(iii) becomes the Beneficial Owner of more than the Requisite Percentage of
Voting Securities solely as a result of the acquisition of Voting Securities by
the Company which, by reducing the number of Voting Securities outstanding,
increases the proportional number of shares Beneficially Owned by such Person;
(iv) is the Company or any corporation or other Person of which a majority of
its voting power or its equity securities or equity interest is owned directly
or indirectly by the Company (a "Subsidiary", (v) acquires Voting Securities in
connection with a "on-Control Transaction" (as defined in paragraph (iii) below)
or (vi) acquires Voting Securities upon the exercise or conversion of Voting
Securities of another class which does not increase the percentage of Voting
Securities Beneficially Owned by such Person; and provided further that the UNR
Asbestos Disease Claims Trust (the "Trust") may acquire the Beneficial Ownership
of additional Voting Securities to the extent that immediately prior to such
acquisition the Trust Beneficially Owned at least 50% of the outstanding Voting
Securities; or
(ii) The individuals who, as of the date of this Agreement, are
members of the Board (the "Incumbent Board"), cease for any reason to constitute
at least two thirds of the Board; provided, however, that if either the election
of any new director or the nomination for election of any new director by the
Company's stockholders was approved by (i) a vote of at least two-thirds of the
Incumbent Board or (ii) the Trust at such time as the Trust Beneficially Owns at
least 50% of the Voting Securities, such new director shall be considered as a
member of the Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the 1934 Act, as in effect on the
date hereof) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board of Directors (a "Proxy
Contest"), including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(iii) Approval by securityholders of the Company of:
(a) A merger, consolidation or reorganization involving the
Company (a "Business Combination"), unless
(i) the securityholders of the Company, immediately before the
Business Combination, own, directly or indirectly immediately following the
Business Combination, at least 75% of the combined voting power for the election
of directors generally of the outstanding securities of the corporation
resulting from the Business Combination (the "Surviving Corporation") in
substantially the same proportion as their ownership of the Voting Securities
immediately before the Business Combination, and
(ii) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for the Business
Combination constitute at least two-thirds of the members of the Board of
Directors of the Surviving Corporation, and
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(iii) no Person (other than the Company or any Subsidiary, a trustee
or other fiduciary holding securities under one or more employee benefit plans
or arrangements (or any trust forming a part thereof maintained by the Company,
the Surviving Corporation or any Subsidiary, or any Person who, immediately
prior to the Business Combination, had Beneficial Ownership of the Requisite
Percentage of the then outstanding Voting Securities) upon consummation of the
Business Combination is the Beneficial Owner of the Requisite Percentage of the
combined voting power for the election of directors generally of the Surviving
Corporation's then outstanding securities (a transaction described in clauses
(i) through (iii) shall be referred to as a "Non-Control Transaction");
(b) A complete liquidation or dissolution of the Company; or
(c) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Subsidiary).
If any of the foregoing transactions are approved by securityhodlders and
not consummated within thirty (30) days after such approval is obtained (or such
longer period as may be determined by the then members of the Incumbent Board),
then the "Change of Control" shall be deemed void ab initio.
Voting Securities acquired by a Person that is not deemed to
constitute an "acquisition" of such Voting Securities by such Person by reason
or either of the provisos to paragraph (i) above shall nevertheless be deemed to
be Beneficially Owned by such person for purposes of determining whether the
"acquisition" of any additional Voting Securities by such Person (which
subsequent and, therefore, is considered to be an "acquisition" of Voting
Securities for purposes of paragraph (i)) would result in such Person exceeding
the Requisite Percentage of Voting Securities. The term "Person shall mean any
individual, firm corporation, partnership, joint venture, association, trust or
other entity as well as any "Affiliate" or "Associate" thereof (as such terms
are defined in the 1934 Act).
Notwithstanding the foregoing, a Change of Control shall not be deemed to
occur solely because the Requisite Percentage of the ten outstanding Voting
Securities is Beneficially Owned by (i) a trustee or other fiduciary holding
securities under one or more employee benefit plans or arrangements (or any
trust forming a part thereof) maintained by the Company or any Subsidiary or
(ii) any corporation which, immediately prior to its acquisition of such
interest, is owned directly or indirectly by the stockholders of the Company in
the same proportion as their ownership of stock in the Company immediately prior
to such acquisition. Furthermore, if the Executive's employment is terminated
and the Executive reasonable demonstrates that such termination (i) was at the
request of a third party who has indicated an intention or take steps reasonable
calculated to effect a Change of Control and who effectuates a Change of Control
or (ii) otherwise occurred in connection with, or in anticipation of, a Change
of Control which actually occurs, then for all purposes hereof, a Change of
Control shall be deemed to have occurred and the date of a Change of Control
with respect to the employment shall mean the date immediately prior to the
termination date.
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(c) A resignation for "Good Reason" shall mean the resignation of the
Executive from employment by the Company after (i) a material reduction or
adverse alteration in the nature of the Executive's position, responsibilities
or authorities, (ii) the Executive becoming the holder of a lesser office or
title than that held by him immediately prior to such change, (iii) any material
reduction of the Executive's compensation or benefits, (iv) the relocation of
the Executive's job more than thirty miles from his present location or (v) any
other material adverse change to the terms and conditions of the Executive's
employment or benefits, provided that, if the Executive shall consent in writing
to any event described in clauses (i) through (v) of this sentence, the
Executive'' subsequent resignation shall not be treated as a resignation for
Good Reason, unless a subsequent event described in such clauses to which
Executive did not consent occurs.
(d) "Permanent Disability" shall mean any physical or mental disability
which shall have rendered Executive unable to perform his duties hereunder for
120 consecutive days, or which, in the opinion of a licensed physician
reasonable satisfactory to the Company, is likely to render Executive unable to
perform his duties hereunder for such period.
(e) "Retirement" shall mean a termination of the Executive's employment
other than for Cause on or after the Executive's attainment of age 65.
3. Severance Benefit
If, during the term of this Agreement, (a) a Change of Control occurs, and
(b) within a two year period from the date of such Change of Control, either (i)
the Executive's employment with the Company and its subsidiaries is terminated
by the Company other than for Cause or on account of the Executive's death,
Permanent Disability or Retirement, or (ii) the Executive resigns for good
Reason, then the Company shall pay to the Executive a Severance Payment in an
amount equal to one and one-third (1-1/3) times the Executive's annual salary
for the year in which termination occurs. The Severance Payment shall be
payable in a single lump sum which shall be paid within thirty (30) days of the
termination of employment or resignation.
In addition to the Severance Payment, the Company shall provide health,
disability and life insurance in accordance with the plans maintained by the
Company for executives for a period of one (1) year from the date of termination
of the Executive's employment, provided that health, disability and life
insurance benefits shall cease if Executive becomes employed during such period
and receives similar benefits in connection with such employment.
Notwithstanding the foregoing, if there shall be a sale or disposition of
all or substantially all the assets of the Company and the Executive shall be
offered employment (at substantially the same level of Executive's authority,
responsibility, compensation and benefits with the Company before such sale),
with the purchaser or any of its affiliates ("Buyer") following such sale or
disposition, then the Executive shall not be entitled to a Severance Payment as
provided above. In that event, however, the Executive shall be entitled to a
Severance Payment if, within a twelve (12) month period, either (1) the
Executive's employment with the Buyer shall be terminated by the Buyer other
than for Cause or on account of the Executive's death, Permanent Disability or
Retirement, or 92) the Executive shall resign from the Buyer for Good Reason.
Such Severance Payment shall be computed on the basis of the Executive's salary
at the Company in the year in
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which Executive was last employed by the Company.
For purposes of this paragraph, the time of a termination of employment or
resignation and the definitions of "Permanent Disability", "Retirement",
resignation for "Good Reason" and "Cause" shall be construed with reference to
the Buyer instead of with reference to the Company.
4. No Reduction or Mitigation. The amounts payable pursuant to paragraph
3 of this Agreement shall be paid without reduction, other than as provided in
said paragraph, regarding less of any amounts of salary, compensation or other
amounts which the Executive could have obtained upon seeking other employment;
provided that the Company shall be permitted to make all such payments net of
any legally required tax withholdings.
5. Non-competition. The Executive agrees that during his employment and
for a period of one (1) year after the termination of his employment for any
reason, he shall not enter into or engage in or be connected with, or engage to
work for an individual, firm or corporation which is engaged in or connected
with, any business which is then in substantial competition with the Company in
the United States. The provisions of the last preceding sentence shall not
apply to the ownership of less than ten percent (10%) of the shares of any
corporation listed on any recognized exchange or traded over-the-counter. The
provisions of this paragraph shall survive a termination of this Agreement.
6. Non-Disclosure. The Executive agrees not to disclose either during the
period of his employment or at any time thereafter to any person, firm, or
corporation any information concerning the business or affairs of the Company
which he may have acquired in the course of, or as incident to, his employment
with the Company for his own benefit or to the detriment or intended detriment
of the Company. The provisions of this paragraph shall survive a termination of
this Agreement.
7. Binding Effect; Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and the Executive's heirs and
legal representatives and the Company's successors and assigns. This Agreement
is assignable by the Company to any corporate or other entity which acquires,
directly or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets of the Company. Upon any such assignment, and
the assumption by the assignee of all obligations hereunder, the Company shall
be released from all liability hereunder. This Agreement shall not be
assignable by the Executive.
8. Nonalienation of Benefits. Benefits payable under this Agreement shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind, either voluntary or involuntary, prior to actually being received by the
Executive; and any attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge, garnish, execute on, levy or otherwise dispose of any
right to benefits payable hereunder, shall be void.
9. Severability. If all or any part of this Agreement is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any paragraph or part of a paragraph so
declared to be unlawful or invalid shall, if possible, be
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construed in a manner which will give effect to the terms of such paragraph or
part of a paragraph to the fullest extent possible while remaining lawful and
valid.
10. Entire Agreement; Amendment; Waiver. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior or contemporaneous oral or written
negotiations, understandings and agreements between the parties hereto. This
Agreement shall not be altered, amended or modified except by written instrument
executed by the Company and Executive. A waiver of any term, covenant,
agreement or condition contained in this Agreement shall not be deemed a waiver
of any other tem, covenant, agreement or condition, and any waiver of any
default in any such term, covenant, agreement or condition shall not be deemed a
waiver of any later default thereof or of any other term, covenant, agreement or
condition.
11. Notices. all notices required by this Agreement shall be in writing
and delivered by hand or by first class registered or certified mail, postage
prepaid.
12. Legal Fees and Expenses. In the event that Executive undertakes legal
action against the Company to enforce its rights under the terms of this
Agreement and judgment is entered against the Company, the Company shall pay
legal fees and expenses incurred by the Executive.
13. Applicable Law. The provisions of this Agreement shall be interpreted
and construed in accordance with the laws of the State of Illinois, without
regard to its choice of law principles.
14. Extension. This Agreement shall be automatically extended for
additional Three-Year Terms if the Company does not give Executive written
notice of termination of this Agreement on or before 120 days prior to the
expiration of the Three Year Term then in effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
UNR Industries, Inc.
By: Xxxxxx Xxxxxxxxx
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President
EXECUTIVE: Xxxxx X. Xxxx
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