Exhibit 10.15
AMENDED AND RESTATED CHANGE IN
CONTROL AGREEMENT
This AMENDED AND RESTATED 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);
WHEREAS, in order to bring this
Agreement into compliance with Section 409A of the Internal
Revenue Code of 1986, as amended (the “ Code ”)
this agreement is being amended and restated.
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 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 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) the 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; or
(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 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 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 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
termination by 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 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 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; 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;
(ii) 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;
(iii) 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
