CHANGE IN CONTROL
AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (this
“Agreement”) is made to be effective as of
April 13, 2009 by and between Greg Ackard (the
“Executive”) and R. G. Barry Corporation, an Ohio
corporation (the “Corporation”).
In order to induce the Executive to remain in
the employ of the Corporation, the Corporation wishes to provide
the Executive with certain severance benefits in the event his
employment with the Corporation terminates subsequent to a Change
in Control of the Corporation under the circumstances described
herein.
NOW, THEREFORE, the parties hereto, intending to
be legally bound, agree as follows:
1. DEFINITIONS . For purposes of
this Agreement, the following terms shall have the following
meanings unless otherwise expressly provided in this
Agreement:
(i) Change in Control . A “
Change in Control ” shall be deemed to have occurred
if (A) any “person” (as that term is used in
§13(d) and §14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) on the date hereof,
including any “group” as such term is used in
Section 13(d)(3) of the Exchange Act on the date hereof (an
“Acquiring Person”)), shall hereafter acquire (or
disclose the previous acquisition of) beneficial ownership (as that
term is defined in Section 13(d) of the Exchange Act and the rules
thereunder on the date hereof) of shares of the outstanding stock
of any class or classes of the Corporation which results in such
person or group possessing more than 50.1% of the total voting
power of the Corporation’s outstanding voting securities
ordinarily having the right to vote for the election of directors
of the Corporation (a “Control Acquisition”); or
(B) as the result of, or in connection with, any tender or
exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions (a “Transaction”), the persons who were
directors of the Corporation immediately before the completion of
the Transaction shall cease to constitute a majority of the Board
of Directors of the Corporation or any successor to the
Corporation.
(ii) Disability . The
Executive’s employment shall be deemed to have been
terminated for “ Disability ” if, as a result of
his incapacity due to physical or mental illness, he shall have
been absent from his duties with the Corporation on a full-time
basis for the entire period of four consecutive months, and within
30 days after written notice of termination is given (which
may occur before or after the end of such four-month period) he
shall not have returned to the full-time performance of his
duties.
(iii) Effective Period . The
“ Effective Period ” means the 36-month period
following any Change in Control (even if such 36-month period shall
extend beyond the term of this Agreement or any extension
hereof).
(iv) Termination for Cause . The
Corporation shall have “ Cause ” to terminate
the Executive’s employment hereunder upon (A) the
willful and continued refusal by the Executive to substantially
perform his duties with the Corporation (other than any such
refusal resulting from his incapacity due to a Disability),
(B) failure of the Executive to comply with any applicable law
or regulation affecting the Corporation’s business,
(C) the commission by the Executive of an act of fraud upon or
an act evidencing bad faith or dishonesty toward the Corporation,
(D) conviction of the Executive of any felony or misdemeanor
involving moral turpitude, (E) the misappropriation by the
Executive of any funds, property, or rights of the Corporation, or
(F) the Executive’s breach of any of the provisions of
this Agreement.
(v) Termination For Good Reason .
“ Good Reason ” shall mean, unless the Executive
shall have consented in writing thereto, termination by the
Executive of his employment because of any of the
following:
(A) a reduction in the Executive’s
title, duties, responsibilities or status, as compared to such
title, duties, responsibilities or status immediately prior to the
Change in Control or as the same may be increased after the Change
in Control;
(B) the assignment to the Executive of
duties inconsistent with the Executive’s office on the date
of the Change in Control or as the same may be increased after the
Change in Control;
(C) a reduction by the Corporation in the
Executive’s base salary as in effect immediately prior to the
Change in Control or as the same may be increased after the Change
in Control or a reduction by the Corporation after a Change in
Control in the Executive’s total compensation (including
bonus) so that the Executive’s total cash compensation in a
given calendar year is less than 90% of the Executive’s total
compensation for the prior calendar year;
(D) a requirement that the Executive
relocate anywhere not mutually acceptable to the Executive and the
Corporation or the imposition on the Executive of business travel
obligations substantially greater than his business travel
obligations during the year prior to the Change in
Control;
(E) the relocation of the
Corporation’s principal executive offices to a location
outside the greater Columbus, Ohio area;
(F) the failure by the Corporation 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 at
the time of a Change in Control (or plans providing the Executive
with substantially similar benefits), the taking of any action by
the Corporation 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 enjoyed by
him at the time of the Change in Control, or the failure by the
Corporation to provide him with the number of paid vacation days to
which he is then entitled on the basis of years of service with the
Corporation in accordance with the normal vacation policy in effect
immediately prior to the Change in Control; or
(G) any breach of this Agreement on the
part of the Corporation.
(vi) Notice of Termination . A
“ Notice of Termination ” shall mean a notice
which shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive’s employment.
(vii) Date of Termination . “
Date of Termination ” shall mean the date on which the
Executive’s employment terminates. For purposes of this
Agreement, with regard to the Executive’s employment, the
term “termination” or any form thereof (whether or not
capitalized) shall mean a “separation from service”
with the Corporation and all persons with whom the Corporation
would be considered a single employer under Sections 414(b) and
(c) of the Internal Revenue Code of 1986, as mended (the
“Code”), within the meaning of Section 409A of the
Code and Treasury Regulation §1.409A-1(h).
2. TERM . Unless sooner terminated
as herein provided, the term of this Agreement shall commence on
the date hereof and shall continue through April 13, 2012 (the
“Termination Date”). It is understood that no amounts
or benefits shall be payable under this Agreement unless
(i) there shall have been a Change in Control during the term
of this Agreement and (ii) the Executive’s employment is
terminated at any time during the Effective Period as provided in
Section 5 hereof. It is further understood that the Corporation may
terminate the Executive’s employment at any time before or
after a Change in Control, subject to the Corporation providing, if
required to do so in accordance with the terms hereof, the
severance payments and benefits hereinafter specified, which
payments and benefits shall only be available if a Change in
Control has occurred prior to such termination. Prior to a Change
in Control, this Agreement shall terminate immediately if the
Executive’s employment with the Corporation is terminated for
any reason.
3. SERVICES DURING CERTAIN EVENTS .
In the event any person (as that term is used in Section 1(i)
above) commences a tender or exchange offer, distributes proxy
materials to the Corporation’s shareholders or takes other
steps to effect a Change in Control, the Executive agrees he will
not voluntarily terminate his employment with the Corporation other
than by reason of his retirement at normal retirement age, and will
continue to serve as a full-time employee of the Corporation until
such efforts to effect a Change in Control are abandoned or
terminated or until a Change in Control has occurred.
4. TERMINATION FOLLOWING A CHANGE IN
CONTROL . Any termination of the Executive’s employment
by the Corporation for Cause, Disability or otherwise or by the
Executive for Good Reason, which, in any case, occurs at any time
during the Effective Period, shall be communicated by written
Notice of Termination to the other party.
5. COMPENSATION UPON TERMINATION
FOLLOWING A CHANGE IN CONTROL .
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