EXHIBIT 10.35
NATCO GROUP INC.
SENIOR MANAGEMENT
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is entered into this 7th day of October, 2003 by and
between NATCO GROUP INC., a Delaware corporation (the "Company"), and Xxxxxxxxx
X. Xxxxx (the "Executive").
WHEREAS, the Company's Board of Directors (the "Board") has determined
that it is in the best interests of the Company and its stockholders to ensure
that the Company and its affiliates will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of a
termination of the Executive's employment in certain circumstances, including
following a Change in Control as defined herein. The Board believes it is
imperative to diminish the inevitable distraction of the Executive by virtue of
the personal uncertainties and risks created by a pending or threatened
termination of the Executive's employment in such circumstances and to provide
the Executive with compensation and benefits arrangements upon such a
termination which ensure that the compensation and benefits expectations of the
Executive will be satisfied and which are competitive with those of other
corporations who may seek to employ the Executive.
NOW, THEREFORE, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement with the Executive, and it is
hereby agreed as follows:
1. Definitions. For purposes of this Agreement, the following terms will
have the following meanings unless otherwise expressly provided in this
Agreement:
(a) Board. "Board" means the Board of Directors of the Company.
(b) Cause. "Cause" means:
(i) the Executive's willful and continued failure to
substantially perform the Executive's duties with the
Company or its affiliates (other than any such
failure resulting from the Executive's incapacity due
to physical or mental illness), after a written
demand for substantial performance is delivered to
the Executive by the Company which specifically
identifies the manner in which the Company believes
that the Executive has not substantially performed
his or her duties;
(ii) the final conviction of the Executive of, or an
entering of a guilty plea or a plea of no contest by
the Executive, to a felony or of a misdemeanor
involving moral turpitude; or
1
(iii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and
demonstrably injurious to the Company.
For purposes of this definition, no act or failure to
act on the part of the Executive shall be considered
"willful" unless it is done, or omitted to be done,
by the Executive in bad faith or without a reasonable
belief that the action or omission was in the best
interests of the Company or its affiliates. Any act,
or failure to act, based on authority given pursuant
to a resolution duly adopted by the Board, the
instructions of a more senior officer of the Company
or the advice of counsel to the Company or its
affiliates will be conclusively presumed to be done,
or omitted to be done, by the Executive in good faith
and in the best interests of the Company and its
affiliates.
(c) Change in Control. A "Change in Control" means the occurrence of
any one of the following events:
(i) the Company is not the surviving entity in any merger
or consolidation (or survives only as a subsidiary of
an entity);
(ii) the Company sells, leases or exchanges or agrees to
sell, lease or exchange all or substantially all of
its assets to any other person or entity;
(iii) the Company is to be dissolved and liquidated;
(iv) any person or entity, including a "group" as
contemplated by Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, acquires or gains
ownership or control (including, without limitation,
power to vote) of more than 50% of the outstanding
shares of the Company's voting stock (based upon
voting power); or
(v) as a result of or in connection with a contested
election of Directors, the persons who were Directors
of the Company before such election shall cease to
constitute a majority of the Board.
(d) Date of Termination means the date specified in a Notice of
Termination pursuant to paragraph 3 hereof, or the Executive's last
date as an active employee of the Company and its affiliates before a
termination of employment due to death, Disability, or other reason, as
the case may be.
(e) Director. "Director" means an individual elected to the Board
by the stockholders of the Company or by the Board under applicable
corporate law who is serving on the Board on the date of this Agreement
or who is elected to the Board after such date.
2
(f) Disability. "Disability" means the Executive's total and
permanent disability as defined under the terms of the Company's
long-term disability plan in effect on the Date of Termination.
(g) Effective Period. The "Effective Period" means the 24-month
period following any Change in Control.
(h) Good Reason. "Good Reason" means, unless the Executive has
consented in writing thereto, the occurrence of any of the following:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's position, including
any material change in status, title, authority,
duties or responsibilities or any other action which
results in a material diminution in such status,
title, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and
which is remedied by the Company or the Executive's
employer promptly after receipt of notice thereof
given by the Executive;
(ii) a reduction by the Company or the Executive's
employer of the Executive's base salary;
(iii) the relocation of the Executive's office to a
location more than 35 miles from its location as of
the Commencement Date;
(iv) following a Change in Control, unless a plan
providing a substantially similar compensation or
benefit is substituted, (A) the failure by the
Company or any of its affiliates or successors to
continue in effect any material fringe benefit or
compensation plan, retirement plan, life insurance
plan, health and accident plan or disability plan in
which the Executive is participating prior to the
Change in Control, or (B) the taking of any action by
the Company or any of its affiliates or successors
which would adversely affect the Executive's
participation in or materially reduce his benefits
under any of such plans or deprive him of any
material fringe benefit; or
(v) following a Change in Control, the failure of the
Company or the affiliate of the Company by which the
Executive is employed, or any affiliate which
directly or indirectly owns or controls any affiliate
by which the Executive is employed, to obtain the
assumption in writing of the Company's obligation to
perform this Agreement by any successor to all or
substantially all of the assets of the Company or
such affiliate within fifteen (15) days after a
reorganization, merger, consolidation, sale or other
disposition of assets of the Company or such
affiliate.
3
(vi) any purported termination of the Executive's
employment by the Company which is not effected
pursuant to a Notice of Termination satisfying the
requirements of paragraph 3 hereof; and for purposes
of this Agreement, no such purported termination
shall be effective.
For purposes of this Agreement, any determination of "Good
Reason" made by the Executive in good faith based upon his
reasonable belief and understanding shall be conclusive.
2. Term. The term ("Term") of this Agreement shall commence on the date
first above written (the "Commencement Date") and, unless terminated earlier as
provided hereunder, shall continue through the third anniversary of the
Commencement Date (the "Termination Date"); provided, however, that commencing
on the anniversary of the Commencement Date (the "Extension Date") and on each
subsequent Extension Date each year thereafter, the term of this Agreement shall
automatically be extended for one additional year, unless at least 90 days prior
to such Extension Date, the Company shall have given notice that it does not
wish to extend this Agreement. Upon the occurrence of a Change in Control during
the term of this Agreement, including any extensions thereof, this Agreement
shall automatically be extended until the end of the Effective Period and may
not be terminated by the Company during such time.
3. Notice of Termination.
(a) Any termination of the Executive's employment by the Company,
or by any affiliate of the Company by which the Executive is employed,
for Cause, or by the Executive for Good Reason shall be communicated by
Notice of Termination to the other party hereto given in accordance
with paragraph 11 of this Agreement. For purposes of this Agreement, a
"Notice of Termination" for termination of employment for Cause or for
Good Reason means a written notice which (i) is given at least thirty
(30) days prior to the Date of Termination; (ii) indicates the specific
termination provision in this Agreement relied upon, (iii) to the
extent applicable, 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, (iv) specifies
the employment termination date; and (v) allows the recipient of the
Notice of Termination at least thirty (30) days to cure the act or
omission relied upon in the Notice of Termination. The failure to set
forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause will not waive any
right of the party giving the Notice of Termination hereunder or
preclude such party from asserting such fact or circumstance in
enforcing its rights hereunder.
(b) A Termination of Employment of the Executive will not be
deemed to be for Cause unless and until there has been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters of the entire membership of the Board
at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is
given an opportunity, together with counsel, to be heard before the
Board), finding that, in the
4
good faith opinion of the Board, the Executive has engaged in the
conduct described in paragraph 1(b) hereof, and specifying the
particulars of such conduct.
(c) A Termination of Employment of the Executive will not be
deemed to be for Good Reason unless the Executive gives the Notice of
Termination provided for herein within twelve (12) months after the
Executive has actual knowledge of the act or omission of the Company
constituting such Good Reason.
4. Obligations of the Company Upon Termination of Executive's Employment
Following a Change in Control
(a) If, during the Effective Period, the Company terminates the
Executive's employment other than for Cause or the Executive terminates
employment with the Company for Good Reason, the Company will pay the
following to the Executive as soon as practicable following the Date of
Termination, but in no event later than thirty (30) days, or such
period otherwise specifically provided, thereafter:
(i) cash in the amount of the Executive's annual base
salary through the Date of Termination to the extent
not theretofore paid, including amounts due for
accrued but unused vacation time;
(ii) cash in the amount of the annual bonus earned by the
Executive through the Date of Termination based on
the Company's performance through such date and
prorationed by multiplying such bonus amount by the
fraction obtained by dividing the number of days in
the year through the Date of Termination by 365,
payable no later than sixty (60) days following the
Date of Termination;
(iii) cash in an amount equal to the product of two times
the Executive's annual base salary at the greater of
(A) the rate in effect at the time Notice of
Termination is given or (B) the rate in effect
immediately preceding the Change in Control, payable
in a lump sum;
(iv) a lump sum cash amount equal to the product of two
times the target annual bonus at the greater of (A)
the target annual bonus in effect at the time Notice
of Termination is given or (B) the target annual
bonus in effect immediately preceding the Change in
Control;
(v) the continuation of the provision of health
insurance, dental insurance and life insurance
benefits for a period of two years following the Date
of Termination to the Executive and the Executive's
family at least equal to and to the same extent as
those which would have been provided to them in
accordance with the plans, programs, practices and
policies of the Company as in effect and applicable
generally to other peer executives and their families
during the 90-day period immediately preceding the
Effective Period or on the Date of Termination, at
the election of the
5
Executive; provided, however, that if the Executive
becomes re-employed with another employer and is
eligible to receive medical or other welfare benefits
under another employer provided plan, the medical and
other welfare benefits described herein will be
secondary to those provided under such other plan
during such applicable period of eligibility.
(b) "Compensation" Under Retirement Plans. Any and all amounts
paid under this Agreement in the amount of or otherwise in respect of
the Executive's annual base salary and bonuses, whether or not deferred
under a deferred compensation plan or program, are intended to be and
will be "Compensation" for purposes of determining Compensation under
any and all retirement plans sponsored or maintained by the Company or
by any affiliate controlled by the Company.
(c) Deferred Bonus Under Natco Group Inc. Target Bonus Plan. The
benefits provided under this paragraph 4 are intended to be in addition
to and separate from any and all bonus compensation amounts earned
under the Natco Group Inc. Target Bonus Plan ("Target Bonus Plan"), the
payment of which has been deferred under the terms of the Target Bonus
Plan. Any and all such deferred bonus compensation shall be payable at
the time and in the manner provided for (or elected) under the terms of
the Target Bonus Plan.
(d) Effect of Death or Disability. If the Executive's employment
is terminated by reason of the Executive's death or Disability during
the Term of this Agreement, this Agreement shall terminate
automatically on the date of death or, in the event of Disability, on
the Date of Termination. In the event of the Executive's death
following the Executive's Date of Termination, but prior to the payment
of the severance payments and benefits provided under paragraph 4
hereof, if any, such payments and benefits will be paid to the
Executive's surviving spouse, or if the Executive has no surviving
spouse, then to the Executive's estate.
(e) Exclusivity of Severance. The severance payments and benefits
provided for under this Agreement are separate and apart from and, to
the extent they are actually paid, will be in lieu of any payment under
any policy or plan of the Company or any of its affiliates regarding
severance payments generally.
5. Mitigation of Damages. The Executive will not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise. Except as otherwise specifically provided
in this Agreement, the amount of any payment provided for under this Agreement
will not be reduced by any compensation earned by the Executive as the result of
self-employment or employment by another employer or otherwise.
6. Stock Options. The benefits provided under paragraph 4 above are
intended to be in addition to the value of any options to acquire common stock
of the Company awarded under the Natco Group Inc. 2001 Stock Incentive Plan (the
"Stock Plan") and any other incentive or similar plan heretofore or hereafter
adopted by the Company. Notwithstanding the terms of the Stock Plan, any award
agreement entered into pursuant to the Stock Plan or any other incentive
6
plan or agreement, all outstanding stock options held by the Executive shall
fully vest as of the date of the Change in Control and become immediately
exercisable in accordance with their terms; provided, however, that if the
Company terminates the Executive's employment other than for Cause or the
Executive terminates employment with the Company for Good Reason during the
Effective Period, then such stock options shall be exercisable for the longer
period of (a) three months after the Executive's Date of Termination or (b)
eighteen months after the effective date of the Change in Control, unless the
term of the stock option expires before the end of such longer period, in which
case the stock option shall be exercisable until the expiration of its term.
7. Limitation of Benefits.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any benefit, payment or
distribution by the Company to or for the benefit of the Executive
(whether payable or distributable pursuant to the terms of this
Agreement or otherwise) (a "Payment") would, if paid, be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then
the Payment shall be reduced to the extent necessary to avoid the
imposition of the Excise Tax. The Executive may select the Payments to
be limited or reduced.
(b) All determinations required to be made under this Section 7,
including whether an Excise Tax would otherwise be imposed and the
assumptions to be utilized in arriving at such determination, shall be
made by Independent Tax Counsel which shall provide detailed supporting
calculations both to the Company and the Executive within fifteen (15)
business days of the receipt of notice from the Executive that a
Payment is due to be made, or such earlier time as is requested by the
Company. For purposes of this paragraph, "Independent Tax Counsel" will
mean a lawyer, a certified public accountant with a nationally
recognized accounting firm, or a compensation consultant with a
nationally recognized actuarial and benefits consulting firm with
expertise in the area of executive compensation, who will be selected
by the Company and will be reasonably acceptable to the Executive, and
whose fees and disbursements will be paid by the Company. Any
determination by the Independent Tax Counsel shall be binding upon the
Company and the Executive. If, as a result of any uncertainty in the
application of Section 4999 of the Code at the time the initial
determination is made by the Independent Tax Counsel hereunder,
Payments hereunder have been unnecessarily limited by this Section 7
("Underpayment"), consistent with the calculations required to be made
hereunder, then the Independent Tax Counsel shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall
be properly paid by the Company to or for the benefit of the Executive.
. If, however, Payments hereunder have not been sufficiently limited by
this Section 7, consistent with the calculations required to be made
hereunder, to prevent the imposition of an Excise Tax upon the
Executive (the "Overpayment"), then the Executive shall notify the
Company in writing within fifteen (15) days of any claim by the
Internal Revenue Service, that, if successful, would require the
payment by the Executive of any Excise Tax, and the Independent Tax
Counsel shall determine the amount of Overpayment that has occurred and
any such
7
Overpayment shall be properly refunded by the Executive by or for the
benefit of the Company so as to properly prevent the imposition of the
Excise Tax.
8. Confidential Information; Non-Solicitation. For the Term of this
Agreement, and for the period of time during which the Executive receives
benefits pursuant to paragraph 4(a)(v) hereof, the Executive covenants and
agrees as follows:
(a) To hold in a fiduciary capacity for the benefit of the Company
and its affiliates all secret, proprietary or confidential material,
knowledge, data or any other information relating to the Company or any
of its affiliated companies and their respective businesses
("Confidential Information"), which has been obtained by the Executive
during the Executive's employment by the Company or any of its
affiliated companies and that has not been, is not now and hereafter
does not become public knowledge (other than by acts by the Executive
or representatives of the Executive in violation of this Agreement),
and will not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than
the Company and those designated by it; the Executive further agrees to
return to the Company any and all records and documents (and all copies
thereof) and all other property belonging to the Company or relating to
the Company, its affiliates or their businesses, upon termination of
Executive's employment with the Company and its affiliates; and,
(b) Not to solicit or entice any other employee of the Company or
its affiliates to leave the Company or its affiliates to go to work for
any other business or organization which is in direct or indirect
competition with the Company or any of its affiliates, nor request or
advise a customer or client of the Company or its affiliates to curtail
or cancel such customer's business relationship with the Company or its
affiliates.
9. Rights and Remedies Upon Breach.
(a) The Executive hereby acknowledges and agrees that the
provisions contained in paragraph 8 of this Agreement (the "Restrictive
Covenants"), are reasonable and valid in duration and in all other
respects. If any court of competent jurisdiction determines that any of
the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants will not
thereby be affected and will be given full effect without regard to the
invalid portions.
(b) If the Executive breaches, or threatens to commit a breach of,
any of the Restrictive Covenants, the Company will have the following
rights and remedies, each of which rights and remedies will be
independent of the others and severally enforceable, and each of which
is in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity:
(i) Specific Performance. The right and remedy to have
the Restrictive Covenants specifically enforced by
any court of competent jurisdiction, it being agreed
that any breach or threatened breach of the
Restrictive
8
Covenants would cause irreparable injury to the
Company and that money damages would not provide an
adequate remedy to the Company.
(ii) Accounting. The right and remedy to require the
Executive to account for and pay over to the Company
all compensation, profits, monies, accruals,
increments or other benefits derived or received by
the Executive as the result of any action
constituting a breach of the Restrictive Covenants.
(iii) Cessation of Severance Benefits. The right and remedy
to cease any further severance, benefit or other
compensation payments under this Agreement to the
Executive or the Executive's beneficiary from and
after the commencement of such breach by the
Executive.
10. Arbitration. The Company and Executive agree that any claim, dispute or
controversy arising under or in connection with this Agreement (including,
without limitation, any such claim, dispute or controversy arising under any
federal, state or local statute, regulation or ordinance or any of the Company's
employee benefit plans, policies or programs) shall be resolved solely and
exclusively by binding arbitration. The arbitration shall be held in the city of
Houston, Texas (or at such other location as shall be mutually agreed by the
parties). The arbitration shall be conducted in accordance with the Expedited
Employment Arbitration Rules (the "Rules") of the American Arbitration
Association (the "AAA") in effect at the time of the arbitration, except that
the arbitrator shall be selected by alternatively striking from a list of five
arbitrators supplied by the AAA. All fees and expenses of the arbitration,
including a transcript if either requests, shall be borne equally by the
parties. If Executive prevails as to any material issue presented to the
arbitrator, the entire cost of such proceedings (including, without limitation,
Executive's reasonable attorneys fees) shall be borne by the Company. If
Executive does not prevail as to any material issue, each party will pay for the
fees and expenses of its own attorneys, experts, witnesses, and preparation and
presentation of proofs and post-hearing briefs (unless the party prevails on a
claim for which attorney's fees are recoverable under the Rules). Any action to
enforce or vacate the arbitrator's award shall be governed by the Federal
Arbitration Act, if applicable, and otherwise by applicable state law. If either
the Company or Executive pursues any claim, dispute or controversy against the
other in a proceeding other than the arbitration provided for herein, the
responding party shall be entitled to dismissal or injunctive relief regarding
such action and recovery of all costs, losses and attorney's fees related to
such action. Notwithstanding the provisions of this paragraph, either party may
seek injunctive relief in a court of competent jurisdiction, whether or not the
case is then pending before the panel of arbitrators. Following the court's
determination of the injunction issue, the case shall continue in arbitration as
provided herein.
11. Notices. Any notice provided for in this Agreement will be given in
writing and will be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice will be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission, or, if mailed, on the
date of actual receipt thereof. Notices will be properly addressed to the
parties at their respective
9
addresses set forth below or to such other address as either party may later
specify by notice to the other in accordance with the provisions of this
paragraph:
If to the Company:
Natco Group Inc.
Brookhollow Central III
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
If to the Executive:
Xxxxxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
12. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto, and any and all prior
employment or severance agreements and related amendments entered into between
the Company and the Executive.
13. Waivers and Amendments. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party of any such right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the state of Texas (without giving effect to the
choice of law provisions thereof), where the employment of the Executive will be
deemed, in part, to be performed, and enforcement of this Agreement or any
action taken or held with respect to this Agreement will be taken in the courts
of appropriate jurisdiction in Houston, Texas.
15. Assignment. This Agreement, and any rights and obligations hereunder,
may not be assigned by the Executive and may be assigned by the Company only to
any successor in interest, whether by merger, consolidation, acquisition or the
like, or to purchasers of substantially all of the assets of the Company.
16. Binding Agreement. This Agreement will inure to the benefit of and be
binding upon the Company and its respective successors and assigns and the
Executive and his legal representatives.
10
17. Counterparts. This Agreement may be executed in separate counterparts,
each of which when so executed and delivered will be deemed an original, but all
of which together will constitute one and the same instrument.
18. Headings. The headings in this Agreement are for reference purposes
only and will not in any way affect the meaning or interpretation of this
Agreement.
19. Authorization. The Company represents and warrants that the Board of
Directors of the Company has authorized the execution of this Agreement.
20. Validity. The invalidity or unenforceability of any provisions of this
Agreement will not affect the validity or enforceability of any other provisions
of this Agreement, which will remain in full force and effect.
21. Tax Withholding. The Company will have the right to deduct from all
benefits and/or payments made under this Agreement to the Executive any and all
taxes required by law to be paid or withheld with respect to such benefits or
payments.
22. No Contract of Employment. Nothing contained in this Agreement will be
construed as a contract of employment between the Company or any of its
affiliates and the Executive, as a right of the Executive to be continued in the
employment of the Company or any of its affiliates, or as a limitation of the
right of the Company or any of its affiliates to discharge the Executive with or
without cause.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
The Company
NATCO GROUP INC. THE EXECUTIVE
By /s/ XXXXXXXXX X. XXXXXXX /s/ XXXXXXXXX X. XXXXX
---------------------------- -----------------------
Title: Chief Executive Officer Xxxxxxxxx X. Xxxxx
NATCO
11
