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EXHIBIT 10.5
CHANGE IN CONTROL AGREEMENT
This Agreement between Xxxxxx Industries, Inc., a Delaware corporation
(the "Company"), and Xx. Xxxxxx X. Xxxxxx, Xx. (the "Employee") is dated as of
the 17th of June, 1997, (the "Effective Date").
W I T N E S S E T H:
Whereas, the Company considers it to be in the best interests of its
stockholders to encourage the continued employment of key employees of the
Company; and
Whereas, the Employee is a key employee of the Company; and
Whereas, the Company believes that the possibility of the occurrence of
a Change in Control of the Company (as that phrase is defined in Section 2) may
result in the termination by the Employee of the Employee's employment by the
Company or in the distraction of the Employee from the performance of his
duties to the Company, in either case to the detriment of the Company and its
stockholders; and
Whereas, the Company recognizes that the Employee could suffer adverse
financial and professional consequences if a Change in Control of the Company
were to occur; and
Whereas, the Company wishes to enter into this Agreement to protect the
Employee if a Change in Control of the Company occurs, thereby encouraging the
Employee to remain in the employ of the Company and not be distracted from the
performance of his duties to the Company;
Now, Therefore, the parties agree as follows:
Section 1. Other Employment Arrangements. Except as provided in
Section 14, this Agreement does not affect the Employee's employment agreement
with the Company executed simultaneously herewith or future employment
arrangements with the Company unless a Change in Control of the Company shall
have occurred before the expiration of the term of this Agreement. The
Employee's employment by the Company shall continue to be at the will of the
Board of Directors or, if the Employee is not an officer of the Company at the
time of the termination of the Employee's employment by the Company, the will
of the Chief Executive Officer of the Company, except that if (i) a Change in
Control of the Company shall have occurred before the expiration of the term of
this Agreement and (ii) the Employee's employment by the Company is terminated
(whether by the Employee or the Company or automatically as provided in Section
3) after the occurrence of that Change in Control of the Company, then the
Employee shall be entitled to receive certain benefits as provided in this
Agreement.
Section 2. Change in Control of the Company. A "Change in Control of
the Company" shall have occurred if, after the Effective Date:
(i) a report on Schedule 13D shall be filed with the
Commission pursuant to Section 13(d) of the Exchange Act and that report
discloses that any person (within the meaning of Section 13(d) of the
Exchange Act), other than the Company (or one of its subsidiaries) or
any employee benefit plan sponsored by the Company (or one of its
subsidiaries), is the beneficial owner (as that term is defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of 20 percent or
more of the outstanding Voting Stock;
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(ii) any person (within the meaning of Section 13(d) of the
Exchange Act), other than the Company (or one of its subsidiaries) or
any employee benefit plan sponsored by the Company (or one of its
subsidiaries), shall purchase securities pursuant to a tender offer or
exchange offer to acquire any Voting Stock (or any securities
convertible into Voting Stock) and, immediately after consummation of
that purchase, that person is the beneficial owner (as that term is
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 20 percent or more of the outstanding Voting Stock (such person's
beneficial ownership to be determined, in the case of rights to acquire
Voting Stock, pursuant to paragraph (d) of Rule 13d-3 under the Exchange
Act);
(iii) the stockholders of the Company shall approve (w) a merger
or consolidation of the Company with or into any other person, unless
the sole purpose of the merger is to change the Company's domicile
within the United States of America, (x) any sale, lease, exchange or
other transfer of all or substantially all the assets of the Company and
its consolidated subsidiaries, (y) the dissolution of the Company, or
(z) a transaction immediately after the consummation of which any person
(within the meaning of Section 13(d) of the Exchange Act) would be the
beneficial owner (as that term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than 50 percent of the
outstanding Voting Stock; or
(iv) during any period of 12 consecutive months, the
individuals who at the beginning of that period constituted the Board of
Directors shall cease to constitute a majority of the Board of
Directors.
Section 3. Term of This Agreement. The term of this Agreement shall
begin on the Effective Date and shall expire on the termination by the Employee
or the Company of the Employee's employment relationship with the Company.
Section 4. Event of Termination for Cause. An "Event of Termination
for Cause" shall have occurred if, after the Effective Date, the Employee
shall:
(i) willfully and continuously fail to substantially perform
the Employee's duties to the Company (other than any failure that
results from the Employee's having become mentally or physically
disabled or any actual or anticipated failure that results from the
occurrence of an Event of Termination for Good Reason) within 30 days
after notice demanding substantial performance, which notice shall
specifically identify the duties that the Employee has failed to
substantially perform, is given to the Employee by the Company; or
(ii) willfully engages in conduct that the Employee knows to be
materially injurious to the Company.
Section 5. An Event of Termination for Good Reason. An "Event of
Termination for Good Reason" shall have occurred if, after the Effective Date,
the Company shall:
(i) assign to the Employee any duties inconsistent with the
Employee's position (including offices, titles and reporting
requirements), authority, duties or responsibilities with the Company in
effect immediately before the occurrence of the first Change in Control
of the Company;
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(ii) remove the Employee from, or fail to re-elect or appoint
the Employee to, any position with the Company that was held by the
Employee immediately before the occurrence of the first Change in
Control of the Company, except that a nominal change in the Employee's
title shall not constitute such an event;
(iii) take any other action that results in a material
diminution in such position, authority, duties or responsibilities;
(iv) reduce the Employee's annual Base Salary as in effect
immediately before the occurrence of the first Change in Control of the
Company or as the Employee's annual Base Salary may be increased from
time to time after that occurrence;
(v) relocate the Employee's principal office outside of the
metropolitan area of the City of Houston, Texas;
(vi) fail to (x) continue in effect any profit sharing,
savings, retirement or pension plan of the Company in which the Employee
was a participant immediately before the occurrence of the first Change
in Control of the Company (including the Company's Employees' Profit
Sharing and Savings Plan), or any substitute plan adopted by the Board
of Directors and in which the Employee was a participant immediately
before the occurrence of the last Change in Control of the Company,
unless an equitable arrangement (embodied in a substitute or alternative
plan) shall have been made with respect to such profit sharing, savings,
retirement or pension plan promptly following the occurrence of the last
Change in Control of the Company, or (y) continue the Employee's
participation in any such plan (or any substitute or alternative plan)
on substantially the same basis, both in terms of the amount of benefits
provided to the Employee and the level of the Employee's participation
relative to other participants, as existed immediately before the
occurrence of the first Change in Control of the Company;
(vii) fail to continue to provide the Employee with benefits
substantially similar to those enjoyed by the Employee under any of the
Company's other employee benefit plans (the "Other Benefit Plans"),
including life insurance, medical, dental, health, accident or
disability plans, in which the Employee was a participant immediately
before the occurrence of the first Change in Control of the Company;
(viii) take any action that would directly or indirectly
materially reduce any other benefits that were provided to the Employee
by the Company immediately before the occurrence of the first Change in
Control of the Company or deprive the Employee of any material fringe
benefit enjoyed by the Employee immediately before the occurrence of the
first Change in Control of the Company;
(ix) fail to provide the Employee with the number of paid
vacation days to which the Employee was entitled in accordance with the
Company's vacation policy in effect immediately before the occurrence of
the first Change in Control of the Company;
(x) fail to comply with Section 8;
(xi) fail to promote the Employee to Chief Executive Officer of
the Company by July 1, 2000; or
(xii) purport to terminate the Employee's employment by the
Company unless notice of that termination shall have been given to the
Employee pursuant to, and that notice shall meet the requirements of,
Section 6.
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Section 6. Notice of Termination. If a Change in Control of the
Company shall have occurred before the expiration of the term of this
Agreement, any subsequent termination by the Employee or the Company of the
Employee's employment by the Company, or any determination of the Employee's
Disability, shall be communicated by notice to the other party that shall
indicate the specific paragraph of Section 7 pursuant to which the Employee is
to receive benefits as a result of the termination. If the notice states that
the Employee's employment by the Company has been automatically terminated as a
result of the Employee's Disability, the notice shall (i) specifically describe
the basis for the determination of the Employee's Disability and (ii) state the
date of the determination of the Employee's Disability, which date shall be not
more than ten days before the date such notice is given. If the notice is from
the Company and states that the Employee's employment by the Company is
terminated by the Company as a result of the occurrence of an Event of
Termination for Cause, the notice shall specifically describe the action or
inaction of the Employee that the Company believes constitutes an Event of
Termination for Cause. If the notice is from the Employee and states that the
Employee's employment by the Company is terminated by the Employee as a result
of the occurrence of an Event of Termination for Good Reason, the notice shall
specifically describe the action or inaction of the Company that the Employee
believes constitutes an Event of Termination for Good Reason. Each notice
given pursuant to this Section 6 (other than a notice stating that the
Employee's employment by the Company has been automatically terminated as a
result of the Employee's Disability) shall state a date, which shall be not
fewer than 30 days nor more than 60 days after the date such notice is given,
on which the termination of the Employee's employment by the Company is
effective. The date so stated in accordance with this Section 6 shall be the
"Termination Date". If a Change in Control of the Company shall have occurred
before the expiration of the term of this Agreement, any subsequent purported
termination by the Company of the Employee's employment by the Company, or any
subsequent purported determination by the Company of the Employee's Disability,
shall be ineffective unless that termination or determination shall have been
communicated by the Company to the Employee by notice that meets the
requirements of the foregoing provisions of this Section 6 and the provisions
of Section 9.
Section 7. Benefits Payable on Change in Control and Termination. If
(x) a Change in Control of the Company shall have occurred before the
expiration of the term of this Agreement and (y) the Employee's employment by
the Company is terminated (whether by the Employee or the Company or
automatically as provided in Section 3) after the occurrence of that Change in
Control of the Company, the Employee shall be entitled to the following
benefits:
(i) If the Employee's employment by the Company is terminated
(x) by the Company as a result of the occurrence of an Event of
Termination for Cause or (y) by the Employee before the occurrence of an
Event of Termination for Good Reason, then the Company shall pay to the
Employee the Base Salary accrued through the Termination Date but not
previously paid to the Employee.
(ii) If the Employee's employment by the Company is
automatically terminated as a result of the Employee's death, the
Employee's Disability or the Employee's Retirement, then (x) the Company
shall pay to the Employee the Base Salary accrued through the date of
the occurrence of that event but not previously paid to the Employee and
(y) the other benefits to be paid to the Employee as a result of that
occurrence shall be determined in accordance with the Other Benefit
Plans in effect at that date.
(iii) If the Employee's employment by the Company is terminated
(x) by the Company otherwise than as a result of the occurrence of an
Event of Termination for Cause or (y) by the Employee after the
occurrence of an Event of Termination for Good Reason, then the Employee
shall be entitled to the following benefits:
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(1) the Company shall pay to the Employee the Base Salary
accrued through the Termination Date but not previously paid to the
Employee;
(2) the Company shall pay to the Employee a lump sum cash
amount equal to three times the sum of:
(A) the greater of the amount of the Employee's
annualized Base Salary in effect (I) for the fiscal year of the
Company in which the Termination Date occurs or (II) immediately
before any reduction in the Base Salary that constituted an Event
of Termination for Good Reason; and
(B) the greater of the amount of any cash bonus (I)
paid or payable by the Company to the Employee for services
rendered during the immediately preceding fiscal year of the
Company, regardless of whether that bonus was paid, or is
payable, after the end of such immediately preceding fiscal year,
or (II) fifty percent of the annualized Base Salary amount as
determined in the foregoing clause (A).
(3) all of the Employee's outstanding awards of Company stock
and outstanding options to purchase Company stock shall become fully
exercisable and nonforfeitable; and
(4) the Company (at its sole expense) shall take the following
actions:
(A) throughout the Relevant Period, the Company shall
maintain in effect employee benefit programs that are
substantially similar to the Other Benefit Plans in which the
Employee was a participant immediately before the Termination
Date; and
(B) the Company shall arrange for the Employee's
uninterrupted participation throughout the Relevant Period in
each of such Other Benefit Plans or substantially similar
employee benefit programs.
Upon payment by the Company to the Employee of the amounts and other benefits
required to be paid pursuant to the foregoing provisions of this Section 7, the
Company shall no longer be obligated to pay any other amounts or benefits to
the Employee, other than benefits that, at the time of termination of the
Employee's employment by the Company, had vested in the Employee as a result of
the Employee's participation in any profit sharing, savings, retirement, or
pension plan of the Company. If the Employee's employment by the Company shall
have been terminated as a result of the Employee's death, the benefits
otherwise required to be paid to the Employee pursuant to the foregoing
provisions of this Section 7 shall be paid to the executor or administrator of
the estate of the Employee. Each payment required to be made to the Employee
pursuant to the foregoing provisions of this Section 7 (i) shall be made by
check drawn on an account of the Company at a bank located in the United States
of America and (ii) shall be paid (x) if the Employee's employment by the
Company was terminated as a result of the Employee's death, the Employee's
Disability or the Employee's Retirement, not more than 30 days immediately
following the date of the occurrence of that event, and (y) if the Employee's
employment by
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the Company was terminated for any other reason, not more than 10 days
immediately following the Termination Date.
Section 8. Successors. If a Change in Control of the Company shall
have occurred before the expiration of the term of this Agreement,
(i) the Company shall not, directly or indirectly, consolidate
with, merge into or sell or otherwise transfer its assets as an entirety
or substantially as an entirety to, any person, or permit any person to
consolidate with or merge into the Company, unless immediately after
such consolidation, merger, sale or transfer, the Successor shall have
assumed in writing the Company's obligations under this Agreement, and
(ii) not fewer than 10 days before the consummation of any
consolidation of the Company with, merger by the Company into, or sale
or other transfer by the Company of its assets as an entirety or
substantially as an entirety to, any person, the Company shall give the
Employee notice of that proposed transaction.
Section 9. Notice. Notices required or permitted to be given by
either party pursuant to this Agreement shall be in writing and shall be deemed
to have been given when delivered personally to the other party or when
deposited with the United States Postal Service as registered mail with postage
prepaid and addressed:
(i) if to the Employee, at the Employee's address last shown
on the Company's records, and
(ii) if to the Company, at 0000 Xxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx
00000, directed to the attention of the Chief Executive Officer,
or, in either case, to such other address as the party to whom or which such
notice is to be given shall have specified by notice given to the other party.
Section 10. Withholding Taxes. The Company may withhold from all
payments to be paid to the Employee pursuant to this Agreement all taxes that,
by applicable federal or state law, the Company is required to so withhold.
Section 11. Expenses of Enforcement. If a Change in Control of the
Company shall have occurred before the expiration of the term of this
Agreement, then, upon demand by the Employee made to the Company, the Company
shall reimburse the Employee for the reasonable expenses (including attorneys'
fees and expenses) incurred by the Employee in enforcing or seeking to enforce
the payment of any amount or other benefit to which the Employee shall have
become entitled pursuant to this Agreement.
Section 12. Employment by Subsidiaries. If, at the Effective Date,
the Employee is an employee of a subsidiary of the Company, references in this
Agreement to the Employee's employment by the Company shall be to the
Employee's employment by the subsidiary.
Section 13. No Obligation to Mitigate. The Employee shall not be
required to mitigate the amount of any payment or other benefit required to be
paid to the Employee pursuant to this Agreement, whether by seeking other
employment or otherwise, nor shall the amount of any such payment or other
benefit be reduced on account of any compensation earned by the Employee as a
result of employment by another person.
Section 14. Confidential Information. From the Effective Date until
the expiration of the term of this Agreement, the Employee shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
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companies, and their respective businesses, that shall have been obtained by
the Employee during the Employee's employment by the Company or any of its
affiliated companies and that shall not have become public knowledge (other
than as a result of acts by the Employee in violation of this Section 14). The
Company shall not withhold or reduce any amount or other benefit payable to the
Employee pursuant to the terms of this Agreement or otherwise on the grounds
that the Employee has breached or threatened to breach the foregoing provisions
of this Section 14, and the sole remedy of the Company for a breach or
anticipated breach of those provisions shall be injunctive relief.
Section 15. Amendment and Waiver. No provision of this Agreement may
be amended or waived unless that amendment or waiver is by written instrument
signed by the parties hereto. No waiver by either party of any breach of this
Agreement shall be deemed a waiver of any other or subsequent breach.
Section 16. Governing Law. The validity, interpretation, construction
and enforceability of this Agreement shall be governed by the laws of the State
of Texas.
Section 17. Validity. The invalidity or unenforceability of any
provision 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.
Section 18. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together will constitute the same instrument.
Section 19. Assignment. This Agreement shall inure to the benefit of
and be enforceable by the Employee's legal representative. The Company may not
assign any of its obligations under this Agreement unless (i) such assignment
is to a Successor and (ii) the requirements of Section 8 are fulfilled.
Section 20. Arbitration. Any dispute between the parties arising out
of this Agreement, whether as to this Agreement's construction, interpretation
or enforceability or as to any party's breach or alleged breach of any
provision of this Agreement, shall be submitted to arbitration in accordance
with the following procedures:
(i) Either party may demand such arbitration by giving notice
of that demand to the other party. The notice shall state (x) the
matter in controversy and (y) the name of the arbitrator selected by the
party giving the notice.
(ii) Not more than 15 days after such notice is given, the
other party shall give notice to the party who demanded arbitration of
the name of the arbitrator selected by the other party. If the other
party shall fail to timely give such notice, the arbitrator that the
other party was entitled to select shall be named by the Arbitration
Committee of the American Arbitration Association. Not more than 15
days after the second arbitrator is so named, the two arbitrators shall
select a third arbitrator. If the two arbitrators shall fail to timely
select a third arbitrator, the third arbitrator shall be named by the
Arbitration Committee of the American Arbitration Association.
(iii) The dispute shall be arbitrated at a hearing that shall be
concluded within 10 days immediately following the date the dispute is
submitted to arbitration unless a majority of the arbitrators shall
elect to extend the period of arbitration. Any award made by a majority
of the arbitrators (x) shall be made within 10 days following the
conclusion of the arbitration hearing, (y) shall be conclusive and
binding on the parties, and (z) may be made the subject of a judgment of
any court having jurisdiction.
(iv) All expenses of the arbitration shall be borne by the
Company.
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The agreement of the parties contained in the foregoing provisions of this
Section 21 shall be a complete defense to any action, suit or other proceeding
instituted in any court or before any administrative tribunal with respect to
any dispute between the parties arising out of this Agreement.
Section 21. Interpretation.
(a) As used in this Agreement, the following terms and phrases have
the indicated meanings:
(i) "Base Salary" has the meaning assigned to that term in the
employment agreement entered into by the Company and the Employee
simultaneously with this Agreement.
(ii) "Board of Directors" means the Board of Directors of the
Company.
(iii) "Change in Control of the Company" has the meaning
assigned to that phrase in Section 2.
(iv) "Commission" means the United States Securities and
Exchange Commission or any successor agency.
(v) "Company" has the meaning assigned to that term in the
recitals to this Agreement. The term "Company" shall also include any
Successor, whether the liability of such Successor under this Agreement
is established by contract or occurs by operation of law.
(vi) "Effective Date" has the meaning assigned to that term in
the recitals to this Agreement.
(vii) "Employee's Disability" means:
(1) if no Change in Control of the Company shall have
occurred before the date of determination, the physical or mental
disability of the Employee determined in accordance with the
disability policy of the Company at the time in effect and
generally applicable to its salaried employees; and
(2) if a Change in Control of the Company shall have
occurred at that date, the physical or mental disability of the
Employee determined in accordance with the disability policy of
the Company in effect immediately before the occurrence of the
first Change in Control of the Company and generally applicable
to its salaried employees.
The Employee's Disability, and the automatic termination of the
Employee's employment by the Company by reason of the Employee's
Disability, shall be deemed to have occurred on the date of
determination, provided that if (1) a Change in Control of the Company
shall have occurred before the expiration of the term of this Agreement,
(2) the Company shall have subsequently given notice pursuant to Section
6 of the Company's determination of the Employee's Disability and (3)
the Employee shall have given notice to the Company that the Employee
disagrees with that determination, then (A) whether the Employee's
Disability shall have occurred shall be submitted to arbitration
pursuant to Section 20, and (B) if a majority of the arbitrators decide
that the Employee's Disability had not occurred at the date of
determination by the Company, then (I) the Employee's Disability, and
the automatic termination of the Employee's employment by the Company by
reason of the Employee's Disability, shall be deemed not to have
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occurred and (II) on demand by the Employee made to the Company, the
Company shall reimburse the Employee for the reasonable expenses
(including attorneys' fees and expenses) incurred by the Employee in
obtaining that decision.
(viii) "Employee's Retirement" means (x) if no Change in Control
of the Company shall have occurred before the date of the Employee's
proposed retirement, the retirement of the Employee in accordance with
the retirement policy of the Company at the time in effect and generally
applicable to its salaried employees and (y) if a Change in Control of
the Company shall have occurred at that date, the retirement of the
Employee from the employ of the Company in accordance with the
retirement policy of the Company in effect immediately before the
occurrence of the first Change in Control of the Company and generally
applicable to its salaried employees.
(ix) "Event of Termination for Good Reason" has the meaning
assigned to that phrase in Section 5.
(x) "Event of Termination for Cause" has the meaning assigned
to that phrase in Section 4.
(xi) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
(xii) "Other Benefit Plans" has the meaning assigned to that
term in Section 5.
(xiii) "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited partnership,
limited liability company, trust, unincorporated organization,
government, or agency or political subdivision of any government. When
the context of this Agreement indicates, the term "person" also has the
meaning assigned to that term in Section 13(d) of the Exchange Act.
(xiv) "Relevant Period" means a period beginning on the
Termination Date and ending on the first to occur of (x) the first
anniversary of the Termination Date, (y) the date on which the Employee
becomes a full time employee of another person and (z) the Employee's
normal retirement date, determined in accordance with the retirement
policy of the Company in effect on the Termination Date.
(xv) "Successor" means a person with or into which the Company
shall have been merged or consolidated or to which the Company shall
have transferred its assets as an entirety or substantially as an
entirety.
(xvi) "Termination Date" has the meaning assigned to that term
in Section 6.
(xvii) "this Agreement" means this Change in Control Agreement as
it may be amended from time to time in accordance with Section 15.
(xviii) "Voting Stock" means shares of capital stock of the
Company the holders of which are entitled to vote for the election of
directors of the Company, but excluding shares entitled to so vote only
upon the occurrence of a contingency unless that contingency shall have
occurred.
(b) In the event of the enactment of any successor provision to any
statute or rule cited in this Agreement, references in this Agreement to such
statute or rule shall be to such successor provision.
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(c) The headings of Sections of this Agreement shall not control the
meaning or interpretation of this Agreement.
(d) References in this Agreement to any Section are to the
corresponding Section of this Agreement unless the context otherwise indicates.
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IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the Effective Date.
XXXXXX INDUSTRIES, INC.
By Xxxxx X. Xxxxxxx
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Executive Vice President
XXXXXX X. XXXXXX, XX.
Xxxxxx X. Xxxxxx
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