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EXHIBIT 10.15
AMENDMENT TO EMPLOYMENT
AGREEMENT BETWEEN
EMPLOYEE
AND
▇▇▇▇▇ INTERNATIONAL, INC.
This Amendment to Employment Agreement is entered into this 16th day
of October, 1989 and is by and between the employee executing this agreement on
the last page hereof ("EMPLOYEE") and ▇▇▇▇▇ International, Inc. ("COMPANY").
WHEREAS, EMPLOYEE AND COMPANY entered into an Employment Agreement on
December 10, 1987 (the "Employment Agreement") which sets forth EMPLOYEE'S
term of employment with COMPANY; and
WHEREAS, the Employment Agreement did not address or provide any
protection for EMPLOYEE or COMPANY in the event of a Change in Control of
COMPANY; and
WHEREAS, should COMPANY receive any proposal from a third person
concerning a possible business combination with, or acquisition of equity
securities of, COMPANY, the Board of Directors of COMPANY believes it
imperative that COMPANY be able to rely upon EMPLOYEE's advice as to the best
interest of COMPANY and its shareholders without concern that EMPLOYEE might be
distracted by the personal uncertainties and risks created by such a proposal.
NOW, THEREFORE, EMPLOYEE and the COMPANY hereby agree as follows:
1. In the event a third person begins a tender or exchange offer,
circulates a proxy to shareholders, or takes other steps to
effect a Change of Control (as defined in Section 11 hereof)
of COMPANY, EMPLOYEE agrees that he will not voluntarily leave
the employ of COMPANY, and will render the services
contemplated in the Employment Agreement, until the third
person has abandoned or terminated his efforts to effect a
Change of Control or until a Change of Control has occurred.
2. In the event EMPLOYEE's employment with the COMPANY (including
its subsidiaries) is involuntarily terminated (as defined in
Section 8 hereof), other than as a consequence of his death or
disability, or of his retirement at or after his normal
retirement date under COMPANY's pension or other retirement
plans, within one and one-half (1 1/2) years after a Change of
Control of COMPANY (a "Covered Termination"), each of the
following payments shall be made by COMPANY to EMPLOYEE not
later than thirty (30) days after the date of such covered
Termination:
(a) Base Salary. An amount in cash equal to three (3)
times the amount of EMPLOYEE's base salary in effect
on his date of Covered
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Termination. Any payments made hereunder are in lieu
of any lump sum payment of base salary required under
the Employment Agreement as a result of the
termination of EMPLOYEE pursuant to Section 4.3 of
the Employment Agreement.
(b) Bonus. An amount in cash equal to the amount of
EMPLOYEE's Target Incentive Level for an Award under
COMPANY's Long Term Incentive Compensation Plan as
in effect on his date of Covered Termination.
(c) 401(k) Plan. An amount in cash equal to the amount
contributed by COMPANY under the ▇▇▇▇▇ International,
Inc. 401(k) Retirement Plan (the "401(k) Plan") to
EMPLOYEES's "Company Contribution Account," as such
term is defined in the 401(k) Plan, for the year
ending immediately prior to the Change in Control.
(d) Perquisites. An amount in cash equal to the
perquisite amount provided in the Executive
Perquisite Program in effect on EMPLOYEE's date of
Covered Termination. Any payments made hereunder
are in lieu of any lump sum payment of perquisites
required under the Employment Agreement as a result
of the termination of EMPLOYEE pursuant to Section
4.3 of the Employment Agreement.
3. COMPANY agrees that for the period beginning on the date of EMPLOYEE's
Covered Termination and ending on the first to occur of (i) the date
of EMPLOYEE's reemployment or (ii) the last day of the twelfth (12th)
month following the date of EMPLOYEE's Covered Termination, COMPANY
shall provide medical and dental insurance, life insurance, accidental
death and dismemberment insurance and disability protection no less
favorable to EMPLOYEE (including with respect to any costs borne by
EMPLOYEE) than the better of (a) the coverage provided by COMPANY
immediately prior to the Change of Control or (b) the coverage
provided by COMPANY immediately prior to EMPLOYEE's date of Covered
Termination.
4. Without in any way limiting any pre-existing agreements between
COMPANY and EMPLOYEE, in the event of a Covered Termination, COMPANY
will assist EMPLOYEE with executive outplacement, will provide
office space from which EMPLOYEE may conduct employment efforts,
and secretarial assistance, for a period of up to one year at no cost
to EMPLOYEE and will reimburse EMPLOYEE for the out-of-pocket costs
and expenses (including, without limitation, the reasonable fees of
any placement agencies employed by EMPLOYEE and travel expenses, but
excluding all relocation expenses) incurred by EMPLOYEE in seeking
other employment following any involuntary termination up to a maximum
amount of $12,000.
5. Stock Options. Upon a Change in Control, all stock options become
fully vested and exercisable immediately. In the event of a Covered
Termination, COMPANY shall pay to EMPLOYEE, in respect of each option
to purchase common stock of the Company and any related stock
appreciation right ("SAR") granted to EMPLOYEE
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under COMPANY's 1989 Long-Term Incentive Compensation Plan, 1982
Stock Option Plan or 1971 Stock Option Plan (the "Stock Option Plans")
that is then outstanding (and that has not been exercised) an amount
in cash equal to the excess, if any, of the higher of (a) the Closing
Price per share of COMPANY's common stock on the EMPLOYEE's
termination date or (b) the highest per share price actually paid in
connection with any Change of Control (such higher amount being
hereinafter referred to as "Fair Market Value") over the exercise
price, multiplied by the total number of shares of COMPANY's common
stock subject to such option. Such payment shall be in consideration
of a cancellation of any rights which EMPLOYEE may have in said stock
options and SARs.
6. Unrelated Stock Appreciation Rights (SARs). In the event of a Covered
Termination, the COMPANY shall pay to EMPLOYEE, in respect of each
then outstanding unrelated SAR held by EMPLOYEE, an amount in cash
equal to the amount by which the Fair Market Value of each share of
COMPANY's common stock subject to the SAR exceeds the exercise price
thereof, multiplied by the number of shares of COMPANY's common stock
subject to such SAR. Such payment shall be in consideration of a
cancellation of any rights which EMPLOYEE may have in said SARs.
7. Stock Grants. Upon a Change in Control, all stock grants become fully
vested and exercisable immediately. In the event of a Covered
Termination, the COMPANY shall pay to EMPLOYEE, in respect of each
then outstanding stock grant granted to EMPLOYEE under the Stock
Option Plans, an amount in cash equal to the Fair Market Value of each
share of COMPANY's common stock subject to the stock grant, multiplied
by the number of shares of COMPANY's common stock subject to such
stock grant. Such payment shall be in consideration of a cancellation
of any rights which EMPLOYEE may have in said Stock Grants.
8. Involuntary Termination. For purpose of this agreement, EMPLOYEE's
employment with COMPANY (including its subsidiaries) shall be deemed
to have been involuntarily terminated by COMPANY if (a) EMPLOYEE's
employment is terminated by COMPANY for a reason other than for cause
(which for purposes of this Agreement shall mean EMPLOYEE's gross
negligence, habitual neglect or willful misconduct in performance of
the duties and services required of him pursuant to the Employment
Agreement or EMPLOYEE's final conviction of a felony or of a
misdemeanor involving moral turpitude) or (b) EMPLOYEE terminates his
employment with COMPANY within sixty (60) days of the occurrence of
one or more of the following events: (i) a substantial adverse
alteration in the nature or status of EMPLOYEE's responsibilities from
those in effect immediately prior to the Change in Control (other than
any such alteration primarily attributable to the fact that COMPANY
may no longer be a public company); (ii) the assignment to EMPLOYEE of
any duties inconsistent with his status as an executive officer of
COMPANY; (iii) a reduction by COMPANY in EMPLOYEE'S annual base salary
as in effect on the date hereof or as the same may be increased from
time to time except for across-the-board salary reductions similarly
affecting all executives of COMPANY and all executives of any person
in control of COMPANY; (iv) COMPANY 5 requiring
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EMPLOYEE to be permanently based anywhere other than the continental
United States except for required travel on COMPANY's business to an
extent substantially consistent with EMPLOYEE's present business
travel obligations; (v) the failure by COMPANY to continue in effect
compensation plans that, in the aggregate, provide EMPLOYEE with
benefits not materially less favorable than those provided to EMPLOYEE
immediately prior to the Change in Control under COMPANY's pension,
profit sharing, bonus, incentive, life insurance, health, accident,
disability and other employee benefit plans, programs or arrangements
(other than stock-based compensation plans, programs or arrangements);
or (vi) the taking of any action by COMPANY that would materially
adversely affect the physical conditions existing at the time of the
Change in Control in or under which EMPLOYEE performs his employment
duties; provided, however, that a termination of employment by
EMPLOYEE pursuant to clause (ii), (iii), (iv), (v) or (vi) of this
Section 8 shall not fail to constitute an involuntary termination
within the meaning of this Section 8 merely because the event set
forth in any such clause is primarily attributable to the fact that
COMPANY is no longer a public company.
9. Section 7 to the Employment Agreement is hereby revised to insert a
new subsection (d) as follows:
(d) Following the occurrence of a Covered Termination, the
Employment Period shall be defined as the period of time in
which EMPLOYEE is employed by the COMPANY.
10. Upon a Change in Control, the provisions of Section 7 relating to
Non-Competition shall not be construed to prohibit EMPLOYEE from
seeking or continuing employment with any third person who may
acquire 50% or more of the outstanding common shares of the COMPANY.
11. Definition of Change of Control. For the purpose of this Amendment, a
"Change of Control" shall be deemed to have taken place if: (i) a
third person, including a "group" as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, acquires shares of the COMPANY
having 50% or more of the total number of votes that may be cast for
the election of Directors of the Company; (ii) as the result of any
cash tender or exchange offer, merger or other business combination
(a "Transaction"), the persons who were Directors of the COMPANY
before the Transaction shall cease to constitute a majority of the
Board of Directors of the COMPANY or any successor to the COMPANY; or
(iii) the stockholders of the COMPANY approve an agreement to sell or
otherwise dispose of all or substantially all of the Company's assets
(including a plan of liquidation).
12. Relation to Other Benefit Plans. Except for the specific references
above to the Employment Agreement nothing in this Amendment shall be
deemed to alter or be in lieu of any entitlements due EMPLOYEE under
the benefit plans or policies of COMPANY in existence on the date
hereof. In the event any benefit plan or policy of COMPANY shall
provide for earlier vesting or payment to EMPLOYEE (e.g.,
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stock options, stock appreciation rights or stock grants) than set
forth herein then the terms of the plan or policy shall govern.
13. Successors. This Amendment shall be binding upon and inure to the
benefit of the EMPLOYEE and his estate, and the COMPANY and its
successors or assigns, but neither this Amendment nor any rights
arising hereunder may be assigned or pledged by the EMPLOYEE.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year first above written.
▇▇▇▇▇ INTERNATIONAL, INC. EMPLOYEE:
By: /s/ ▇▇▇▇▇▇▇ ▇. ROCK /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. Rock D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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