Exhibit 10.11
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT dated as of _______________, (the "Effective
Date"), between MIDAS, INC., a Delaware corporation (the "Company"), and
________________ (the "Executive").
WHEREAS, the Company's Board of Directors has determined that, in light of
the importance of the Executive's continued services to the stability and
continuity of management of the Company and its subsidiaries, it is appropriate
and in the best interests of the Company and of its shareholders to reinforce
and encourage the Executive's continued disinterested attention and undistracted
dedication to his duties in the potentially disturbing circumstances of a
possible change in control of the Company by providing some degree of personal
financial security;
WHEREAS, in order to induce the Executive to remain in the employ of the
Company or a subsidiary of the Company (a "Subsidiary"), the Company's Board of
Directors has determined that it is desirable to pay the Executive the severance
compensation set forth below if the Executive's employment with the Company or a
Subsidiary terminates in one of the circumstances described below following a
Change in Control (as defined below);
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the Company and the Executive agree as follows:
1. Term of Agreement. (a) The term of this Agreement shall commence on the
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Effective Date and shall terminate, except to the extent that any obligation of
the Company hereunder remains unpaid as of such time, on the earlier to occur of
the date on which the Executive reaches age 65 and the third anniversary of the
Effective Date, subject to extension as provided in Section 1(b) below;
provided, however, that this Agreement shall continue in effect until the
earlier to occur of the date on which the Executive reaches age 65 and the date
three years beyond the initial or any extended date of termination of this
Agreement if a Change in Control shall have occurred prior to such date of
termination of this Agreement (and shall continue for such additional period as
any obligation of the Company under this Agreement shall remain unpaid).
(b) Commencing on the date after the Effective Date and continuing on each
date thereafter (each such date being hereinafter referred to as a "Renewal
Date"), the term of this Agreement shall be automatically extended so as to
terminate three years thereafter, unless at least 60 days prior to a specified
Renewal Date the Company shall give written notice to the Executive that the
term of this Agreement shall not be so extended.
2. Change in Control. No compensation shall be payable under this Agreement
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unless and until (a) there shall have been a Change in Control while the
Executive is still an employee of the Company or a Subsidiary, and (b) the
Executive's employment by the Company or a Subsidiary thereafter shall have been
terminated in accordance with Section 3 of this Agreement.
For purposes of this Agreement, a "Change in Control" shall mean:
(i) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of
beneficial ownership within the meaning of Rule 13d-3 promulgated under the
Exchange Act, of 25% or more of either (A) the then outstanding shares of
common stock of the Company (the "Outstanding Common Stock") or (B) the
combined voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Voting Securities"); excluding, however, the following: (1) any acquisition
directly from the Company (excluding any acquisition resulting from the
exercise of an exercise, conversion or exchange privilege unless the
security being so exercised, converted or exchanged was acquired directly
from the Company), (2) any acquisition by the Company, (3) any acquisition
by an employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company or (4) any
acquisition by any corporation pursuant to a transaction which complies
with clauses (A), (B) and (C) of clause (iii) in this definition of Change
in Control;
(ii) individuals who, as of the Effective Date, constitute the Board of
Directors of the Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board; provided that any individual
who becomes a director of the Company subsequent to the Effective Date
whose election, or nomination for election by the Company's shareholders,
was approved by the vote of at least a majority of the directors then
comprising the Incumbent Board shall be deemed a member of the Incumbent
Board; and provided further, that any individual who was initially elected
as a director of the Company as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act, or any other actual or threatened
solicitation of proxies or consents by or on behalf of any Person other
than the Board shall not be deemed a member of the Incumbent Board;
(iii) the consummation of a reorganization, merger or consolidation of the
Company or sale or other disposition of all or substantially all of the
assets of the Company (a "Corporate Transaction"); excluding, however, a
Corporate Transaction pursuant to which (A) all or substantially all of the
individuals or entities who are the beneficial owners, respectively, of the
Outstanding Common Stock and the Outstanding Voting Securities immediately
prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 66-2/3% of, respectively, the outstanding shares of
common stock, and the combined voting power of the outstanding securities
of such corporation entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation which
as a result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or indirectly) in substantially
the same proportions relative to each other as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Common Stock and
the Outstanding Voting Securities, as the case may be, (B) no Person (other
than: the Company; any employee benefit plan (or related trust) sponsored
or maintained by the Company or any corporation controlled by the Company;
the corporation resulting from such Corporate Transaction; and any Person
which beneficially owned, immediately prior to such Corporate Transaction,
directly or indirectly, 25% or more of the Outstanding Common Stock or the
Outstanding Voting Securities, as the case may be) will beneficially own,
directly or indirectly, 25% or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding securities of
such corporation entitled to vote generally in the election of directors
and (C) individuals who were members of the Incumbent Board will constitute
at least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(iv) the consummation of a plan of complete liquidation or dissolution of
the Company.
3. Termination Following Change in Control. (a) If a Change in Control
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shall have occurred while the Executive is still an employee of the Company or a
Subsidiary, the Executive shall be entitled to the compensation provided in
Section 4 of this Agreement upon the subsequent termination of the Executive's
employment with the Company or Subsidiary within three years of the date upon
which the Change in Control shall have occurred, unless such termination is as a
result of (i) the Executive's death, (ii) the Executive's Disability (as defined
in Section 3(b) below), (iii) the Executive's Retirement (as defined in Section
3(c) below), (iv) the Executive's termination for Cause (as defined in Section
3(d) below), or (v) the Executive's decision to terminate employment other than
for Good Reason (as defined in Section 3(e) below). Notwithstanding anything to
the contrary in this Agreement, if a Change in Control occurs and if the
Executive's employment with the Company or a Subsidiary was terminated prior to
the date on which the Change in Control occurs, and if it is
reasonably demonstrated by the Executive that such termination of employment (i)
was at the request of a third party who had taken steps reasonably calculated to
effect the Change in Control, or (ii) otherwise arose in connection with or
anticipation of the Change in Control, then for all purposes of this Agreement,
the termination of the Executive's employment shall be deemed to have occurred
immediately following the Change in Control.
(b) Disability. If, as a result of the Executive's incapacity due to a
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medically determinable physical or mental illness which can be expected to be
permanent or of indefinite duration (as certified in writing by a physician
selected by the Company and reasonably acceptable to the Executive), the
Executive shall qualify for benefits under the long-term disability plan of the
Company or a Subsidiary and shall have been absent from his duties with the
Company or a Subsidiary on a full-time basis for a continuous period of six
months commencing with the date of the Change in Control or the first day of
such absence (whichever is later) the Company or such Subsidiary may terminate
the Executive's employment for "Disability" without the Executive being entitled
to the compensation provided in Section 4.
(c) Retirement. The term "Retirement" as used in this Agreement shall mean
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termination by the Company or a Subsidiary or the Executive of the Executive's
employment based on the Executive having reached age 65 without the Executive
being entitled to the compensation provided in Section 4. Termination based on
"Retirement" shall not include, for purposes of this Agreement, the Executive's
taking of early retirement by reason of a termination by the Executive of his
employment for Good Reason.
(d) Cause. The Company or a Subsidiary may terminate the Executive's
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employment for Cause without the Executive being entitled to the compensation
provided in Section 4. For purposes of this Agreement, the Company or Subsidiary
shall have "Cause" to terminate the Executive's employment only on the basis of
(i) the Executive's willful and continued failure substantially to perform his
duties with the Company or Subsidiary (other than any such failure resulting
from his incapacity due to physical or mental illness or any such failure
resulting from the Executive's termination for Good Reason), after a written
demand for substantial performance is delivered to the Executive by the Chief
Executive Officer (or if the Executive is Chief Executive
Officer, by the Board of Directors) which specifically identifies the manner in
which the Chief Executive Officer (or the Board of Directors if the Executive is
Chief Executive Officer) believes that the Executive has not substantially
performed his duties, or (ii) the Executive's willful engagement in gross
conduct materially and demonstrably injurious to the Company or a Subsidiary.
For purposes of this subsection, no act or failure to act on the Executive's
part shall be considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company or a Subsidiary. The Executive
shall not be deemed to have been terminated for Cause unless and until there
shall have been delivered to the Executive a written statement of the Chief
Executive Officer (or if the Executive is Chief Executive Officer, a copy of a
resolution duly adopted by the affirmative vote of not less than two-thirds of
the entire membership of the Board of Directors at a duly convened meeting of
the Board of Directors), finding that in the good faith opinion of the Chief
Executive Officer (or the Board of Directors if the Executive is Chief Executive
Officer) the Executive was guilty of conduct set forth in clause (i) or (ii) of
the second sentence of this Section 3(d) and specifying the particulars thereof
in detail.
(e) Good Reason. The Executive may terminate the Executive's employment
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with the Company or a Subsidiary for Good Reason within three years after a
Change in Control and during the term of this Agreement and become entitled to
the compensation provided in Section 4. For purposes of this Agreement, "Good
Reason" shall mean any of the following events, unless it occurs with the
Executive's express prior written consent:
(i) the assignment to the Executive by the Company or a Subsidiary of any
duties inconsistent with, or a diminution of, the Executive's position,
duties, titles, offices, responsibilities or status with the Company or a
Subsidiary immediately prior to a Change in Control, or any removal of the
Executive from or any failure to reelect the Executive to any of such
positions, except in connection with the termination of the Executive's
employment for Disability, Retirement or Cause or as a result of the
Executive's death or by the Executive other than for Good Reason;
(ii) a reduction by the Company or a Subsidiary in the Executive's base
salary as in effect on the date hereof or as the same may be increased from
time to time during the term of this Agreement or the Company's or
Subsidiary's failure to increase (within 15 months of the Executive's last
increase in base salary) the Executive's base salary after a Change in
Control in an amount which is substantially similar, on a percentage basis,
to the average
percentage increase in base salary for all officers of the Company or the
Subsidiary effected during the preceding 12 months, other than a reduction
of the Executive's base salary pursuant to the terms of the short-term or
long-term disability plans of the Company or a Subsidiary during a period
in which the Executive is disabled (within the meaning of such plan or
plans) and qualifies for benefits under such plan or plans;
(iii) any failure by the Company or a Subsidiary to continue in effect any
benefit plan or arrangement (including, without limitation, any pension or
retirement plan, employee stock ownership plan, group life insurance plan,
medical, dental, accident and disability plans and educational assistance
reimbursement plan) in which the Executive is participating at the time of
a Change in Control (or to substitute and continue other plans providing
the Executive with substantially similar benefits) (hereinafter referred to
as "Benefit Plans"), the taking of any action by the Company or a
Subsidiary which would adversely affect the Executive's participation in or
materially reduce the Executive's benefits under any such Benefit Plan or
deprive the Executive of any material fringe benefit enjoyed by the
Executive at the time of a Change in Control, or the failure by the Company
or Subsidiary to provide the Executive with the number of paid vacation
days to which the Executive is entitled in accordance with the vacation
policies in effect at the time of a Change in Control;
(iv) any failure by the Company or a Subsidiary to continue in effect any
incentive plan or arrangement (including, without limitation, the Company's
annual bonus and contingent bonus arrangements and credits and the right to
receive performance awards and similar incentive compensation benefits) in
which the Executive is participating at the time of a Change in Control (or
to substitute and continue other plans or arrangements providing the
Executive with substantially similar benefits) (hereinafter referred to as
"Incentive Plans") or the taking of any action by the Company or a
Subsidiary which would adversely affect the Executive's participation in
any such Incentive Plan or reduce the Executive's benefits under any such
Incentive Plan in an amount which is not substantially similar, on a
percentage basis, to the average percentage reduction of benefits under any
such Incentive Plan effected during the preceding 12 months for all
officers of the Company or a Subsidiary participating in any such Incentive
Plan;
(v) any failure by the Company or a Subsidiary to continue in effect any
plan or arrangement to receive securities of the Company or awards the
value of which is derived from securities of the Company (including,
without limitation, the Company's Stock Incentive Plan and any other plan
or arrangement to receive and exercise stock options, stock appreciation
rights, restricted stock, phantom stock or grants thereof or to acquire
stock or other securities of the Company) in which the Executive is
participating at the time of a Change in Control (or to substitute and
continue plans or arrangements providing the Executive with substantially
similar benefits) (hereinafter referred to as "Securities Plans") or the
taking of any action by the Company or a Subsidiary which would adversely
affect the Executive's participation in or materially reduce the
Executive's benefits under any such Securities Plan;
(vi) a relocation of the Company's principal executive offices or the
Executive's relocation to any metropolitan area other than the metropolitan
area in which the Executive performed the Executive's duties immediately
prior to a Change in Control;
(vii) a substantial increase in the Executive's business travel obligations
over such obligations as they existed at the time of a Change in Control;
(viii) any material breach by the Company or a Subsidiary of any provision
of this Agreement;
(ix) any failure by the Company to obtain the assumption of this Agreement
by any successor or assign of the Company pursuant to Section 8(a); or
(x) any purported termination by the Company or a Subsidiary of the
Executive's employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 3(f), including any
purported termination of employment under the circumstances described in
the last sentence of Section 3(a); or
(xi) a termination of employment by the Executive for any reason during the
30 day period immediately following the first anniversary upon which the
Change in Control shall have occurred.
(f) Notice of Termination. Any termination of the Executive's employment by
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the Company or a Subsidiary pursuant to Section 3(b), 3(c) or 3(d) or by the
Executive pursuant to Section 3(e) shall be communicated to the other party by a
Notice of Termination. For purposes of this Agreement, a "Notice of Termination"
shall mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon and which sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated. For purposes of
this Agreement, no such purported termination by the Company or Subsidiary shall
be effective without such Notice of Termination.
(g) Date of Termination. "Date of Termination" shall mean (a) if the
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Executive's employment is terminated by the Company or a Subsidiary for
Disability, 30 days after Notice of Termination is given to the Executive
(provided that the Executive shall not have returned to the performance of the
Executive's duties on a full-time basis during such 30-day period) or (b) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
4. Severance Compensation upon Termination. (a) If the Executive's
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employment by the Company or a Subsidiary is terminated (i) by the Company or
Subsidiary pursuant to Section 3(b), 3(c) or 3(d) or by reason of death or (ii)
by the Executive other than for Good Reason, the Executive
shall not be entitled to any severance compensation under this Agreement, but
the absence of the Executive's entitlement to any benefits under this Agreement
shall not prejudice the Executive's right to the full realization of any and all
other benefits to which the Executive shall be entitled pursuant to the terms of
any employee benefit plans or other agreements or policies of the Company or a
Subsidiary in which the Executive is a participant or to which the Executive is
a party.
(b) If the Executive's employment by the Company or a Subsidiary is
terminated (x) by the Company or such Subsidiary other than pursuant to Section
3(b), 3(c) or 3(d) or by reason of death or (y) by the Executive for Good
Reason, then the Executive shall be entitled to the severance compensation
provided below:
(i) In lieu of any further salary or incentive payments to the Executive
for periods subsequent to the Date of Termination, the Company shall pay in
cash as severance compensation to the Executive at the time specified in
subsection (ii) below, a lump-sum severance payment equal to three (3)
times the Executive's Adjusted Annual Compensation. For purposes of this
Agreement, "Adjusted Annual Compensation" shall mean the sum of (x) an
amount equal to the highest level of the Executive's annual base salary in
effect (calculated prior to any deferral of salary, qualified or
nonqualified) between the time of the Change in Control and the Date of
Termination, (y) an amount equal to the greater of the amounts earned by
the Executive under the annual incentive compensation plan of the Company
or a Subsidiary for the two preceding calendar years (calculated prior to
any deferral of salary, qualified or nonqualified), or, if the Executive
has participated in such plan for only one year, an amount equal to the
amount earned under such plan for the preceding calendar year, and (z) an
amount equal to one-third of the sum of the amounts of the current "Target"
values for the Executive under any annual or long term incentive
compensation plans of the Company or a Subsidiary, such Target values to be
prorated from the beginning of the applicable measurement period for each
such plan through the end of the month in which the Date of Termination
occurs.
(ii) The severance compensation provided for in subsection (i) above shall
be paid not later than the 10th day following the Date of Termination;
provided, however, that, if the amount of such compensation cannot be
finally determined on or before such day, the Company shall pay to the
Executive on such day an estimate, as determined in good faith by the
Company, of the minimum amount of such compensation and shall pay the
remainder of such compensation (together with interest at the rate provided
in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended
(the "Code")) as soon as the amount thereof can be determined, but in no
event later than the 30th day after the Date of Termination. In the event
that the amount of the estimated payment exceeds the amount subsequently
determined to have been payable, such excess shall constitute a loan by the
Company to the Executive payable on the 30th day after demand by the
Company
(together with interest at the rate provided in Section 1274(b)(2)(B) of
the Code, commencing on the 31st day following such demand).
(iii) The Company shall arrange to provide the Executive for a period of
thirty-six (36) months following the Date of Termination or until the
Executive's earlier death, with life, medical, dental, accident and
disability insurance benefits and a package of "executive benefits",
including to the extent applicable capital assessments and dues for
pre-existing club memberships and the use of an automobile or an allowance
therefor (collectively, "Employment Benefits"), substantially similar to
those which the Executive was receiving immediately prior to the Date of
Termination.
(iv) During the term of this Agreement and through the period of thirty-six
(36) months following the Date of Termination, all benefits under any
pension or retirement plans, employee stock ownership plan or any other
plan or agreement relating to retirement benefits (collectively,
"Retirement Benefits") in which the Executive participates shall continue
to accrue to the Executive, crediting of service of the Executive with
respect to Retirement Benefits shall continue, and the Executive shall be
entitled to receive all Retirement Benefits provided to the Executive as a
fully vested participant under any such plan or agreement relating to
retirement benefits. No contributions shall be required to be made by the
Executive to any plan providing for employee contributions following the
Date of Termination. To the extent that the amount of any Retirement
Benefits are or would be payable from a nonqualified plan, the Company
shall, as soon as practicable following the Date of Termination (but in no
event later than the 30th day after the Date of Termination), pay directly
to the Executive in one lump sum, cash in an amount equal to the additional
benefits that would have been provided had such accrual or crediting been
taken into account in calculating such Retirement Benefits. Such lump sum
payment shall be calculated as provided in the relevant plan and, in the
case of a defined contribution plan, shall include an amount equal to the
gross amount of the maximum employer contributions.
(v) The Company will be deemed to have forgiven and released an amount of
the outstanding principal, if any, of the Promissory Note dated
_____________ (the "Note") executed by the Executive in favor of the
Company as part of the Company's Executive Stock Ownership Program (the
"Program") equal to the excess of (a) such outstanding principal amount
over (b) the product of (i) the number of shares of the Company's Common
Stock acquired by the Executive pursuant to the Program in consideration of
the Note (such number to be equitably adjusted for stock splits, stock
dividends and the like) multiplied by (ii) the Fair Market Value (as
defined below) of a share of Common Stock on the Measurement Date (as
defined below). For purposes of this Agreement, the "Fair Market Value" of
a share of Common Stock of the Company means, as of the date in question,
the officially-quoted closing selling price of the stock (or if no selling
price is quoted, the bid price) on the principal securities exchange on
which the Common Stock is then listed for trading (including, for this
purpose, the Nasdaq National Market) (the "Market") for the applicable
trading day or, if the date in question is not a trading day, on the
preceding trading day. Also for purposes of this Agreement, the
"Measurement Date" is the Date of Termination or, if the Company's Common
Stock is no longer traded in the Market, the last day on which such Common
Stock was traded in the Market.
(c) In the event the severance compensation payable under this Section 4,
either alone or together with any other payments to the Executive from the
Company or a Subsidiary (including, but not limited to, payments under the
Company's Stock Incentive Plan or any agreement or award issued pursuant to such
Plan or any successor plan), would constitute a "parachute payment" (as defined
in Section 280G of the Code), and subject the Executive to the excise tax
imposed by Section 4999 of the Code, the Company shall pay the Executive, as
additional severance compensation hereunder and payable at the same time or
times as such severance compensation, the amount of such excise tax and any
additional taxes payable by the Executive by reason of such payment (on the
basis of a customary "gross-up" formula), as calculated by the Company. The
Company agrees to indemnify and hold harmless the Executive from and against any
liability for the payment of additional taxes arising from any deficiency in the
amount of such excise tax and any additional taxes thereon so calculated by the
Company, together with any interest or penalties applicable thereto; provided,
however, that it shall be a condition of this obligation to indemnify and hold
harmless the Executive that the Executive shall have timely notified the Company
of any proposed assessment relating to any claimed deficiency therein and
offered the Company the right to contest such assessment or participate in, at
the expense of the Company, any proceeding relating thereto.
5. Payment of Taxes; Continuation of Employment.
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Notwithstanding any other provision of this Agreement or the premises hereto, in
the event the Executive is entitled to receive compensation (whether in the form
of cash, securities or other form of compensation) under or pursuant to any plan
or agreement of or with the Company or a Subsidiary as the result of a Change in
Control, the Company shall pay to the Executive any applicable excise tax, and
any taxes thereon, and shall indemnify and hold harmless the Executive in
respect thereof, as provided in Section 4(c) above, regardless of whether the
employment of the Executive with the Company or a Subsidiary shall have
terminated.
6. Certain Additional Payments by the Company. Notwithstanding any other
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provision of this Agreement or the premises hereto, in the event the Executive
is entitled to receive compensation (whether in the form of cash, securities or
other form of compensation) under or
pursuant to any plan or agreement of or with the Company or a Subsidiary as the
result of a Change in Control:
(a) if, at the time of the Executive's termination, he is also entitled to
take early retirement under the Company retirement plan, the Company shall
provide the Executive with a lumpsum payment sufficient to compensate the
Executive for the difference between his normal early retirement benefit under
the Company retirement plan, and the amount to which the Executive would have
been entitled under the Company retirement plan if he had retired at age 65; and
(b) if the Executive was relocated by the Company within the 12 months
immediately preceding a Change in Control, the Company will provide the
Executive with the same benefits for relocation back to his former metropolitan
area.
7. No Obligation to Mitigate Damages; No Effect on other Contractual
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Rights. (a) The Executive shall not be required to mitigate damages or the
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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 after the
termination of the Executive's employment with the Company or a Subsidiary.
(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 which would accrue solely as
a result of the passage of time, under any Benefit Plan, Incentive Plan or
Securities Plan, employment agreement or other contract, plan or arrangement of
the Company or any Subsidiary.
8. Successor to the Company. (a) The Company will require any successor or
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assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive,
expressly, absolutely and unconditionally to assume and agree 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. Any
failure of the Company to obtain such agreement prior to the effectiveness of
any such succession or assignment shall be a material breach of this Agreement
and shall entitle the Executive to terminate the Executive's employment for Good
Reason.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as aforesaid
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, devisees and legatees. If the Executive should
die while any amounts are still payable to the Executive hereunder, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisees, legatees, or other
designees or, if there be no such designee, to the Executive's estate.
9. Notices. For purposes of this Agreement, notices and all other
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communications provided for in this Agreement shall be in writing and shall be
given by United States certified mail (return receipt requested, postage
prepaid), by personal delivery or by a nationally recognized express delivery
service, and shall be deemed to have been given when actually received, as
follows:
If to the Company:
Midas, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention of: General Counsel
If to the Executive, to the Executive's home address as shown on the Company's
personnel records; or such other address as either party may have given to the
other in writing in accordance herewith.
10. Miscellaneous. No provision of this Agreement may be modified, waived
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or discharged unless such modification, waiver 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. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Illinois.
11. Employment. The Executive agrees to be bound by the terms and
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conditions of this Agreement and to remain in the employ of the Company or a
Subsidiary during any period following any public announcement by any person of
any proposed transaction or transactions which, if effected, would result in a
Change in Control until a Change in Control has taken place or, in the opinion
of the Board of Directors, such person has abandoned or terminated its efforts
to effect a Change in Control. Subject to the foregoing and to the last sentence
of Section 3(a), nothing contained in this Agreement shall impair or interfere
in any way with the right of the Executive to terminate the Executive's
employment or the right of the Company or any Subsidiary to terminate the
employment of the Executive with or without cause prior to a Change in Control.
Nothing contained in this Agreement shall be construed as a contract of
employment between the Company or any Subsidiary and the Executive or as a right
of the Executive to continue in the employ of the Company or any Subsidiary, or
as a limitation of the right of the Company or any Subsidiary to discharge the
Executive with or without cause prior to a Change in Control.
12. Validity. The invalidity or unenforceability of any provisions of this
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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 or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Legal Fees and Expenses. (a) The Company shall pay all legal fees and
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expenses which the Executive may incur as a result of the Company or a
Subsidiary contesting the validity, enforceability or the Executive's
interpretation of, or determinations under, this Agreement.
(b) The Company shall pay all legal fees and expenses which the Executive
may incur by reason of the termination of the Executive's employment, other than
as a result of (i) the Executive's death, (ii) the Executive's Disability (as
defined in Section 3(b) above), (iii) the
Executive's Retirement (as defined in Section 3(c) above), (iv) the Executive's
termination for Cause (as defined in Section 3(d) above), or (v) the Executive's
decision to terminate employment other than for Good Reason (as defined in
Section 3(e) above; such fees and expenses shall include, without limitation,
those incurred in contesting or disputing any such termination or in seeking to
obtain or enforce any right or benefit provided by this Agreement.
(c) The Company shall pay all legal fees and expenses which the Executive
may incur as a result of any tax assessments or proceedings arising from
payments made by the Company pursuant to Section 4(c) or Section 5 above.
(d) If the payment by the Company of any legal fees and expenses pursuant
to this Section 14 shall constitute compensation to the Executive, the Company
agrees, as a separate and independent undertaking, to pay to the Executive upon
demand any and all taxes, of whatever nature or description, applicable to such
payment, together with any taxes thereon (on the basis of a customary "gross-up"
formula).
15. Confidentiality. The Executive shall retain in confidence any and all
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confidential information known to the Executive concerning the Company and its
Subsidiaries and their business so long as such information is not otherwise
publicly disclosed.
16. Effective Date of this Agreement and Termination of Prior Agreement(s).
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This Agreement shall become effective on the Effective Date.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MIDAS, INC.
By
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Name:
Title:
EXECUTIVE
By
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Name:
