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EXHIBIT 10.2
Exhibit A
CHANGE OF CONTROL AGREEMENT
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Parties:
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Analysts
International Corporation
3601
West 76 th
Street, Suite 600
Minneapolis,
MN 55435
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(“Company”)
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Michael
W. Souders
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(“Executive”)
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Date:
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July
1, 2008
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RECITALS :
A. This
Change of Control Agreement is Exhibit A to that certain
Employment Agreement between the Company and Executive having
a Commencement Date of July 1, 2008 (the “Employment
Agreement”), and is an integral part of the Employment
Agreement between the parties.
B. Executive
has been employed by the Company since approximately 1999 and
currently serves as the Senior Vice President,
Solutions. Executive has extensive knowledge and
experience relating to the Company’s
business.
C. The
parties recognize that a “Change in Control” may
materially change or diminish Executive’s
responsibilities and substantially frustrate Executive’s
commitment to the Company.
D. The
parties further recognize that it is in the best interests of
the Company and its stockholders to provide certain benefits
payable upon a “Change of Control Termination” to
encourage Executive to continue in his position in the event
of a Change of Control.
E. The
parties further desire to provide certain benefits payable
upon a termination of Executive’s employment following a
Change of Control.
F. This
Change of Control Agreement is an integral part of the
Employment Agreement between the Company and
Executive. As such, the parties acknowledge and
agree that this Change of Control Agreement is supplemental
to, and does not supersede, the Employment Agreement
(including but not limited to Sections 8.1 and 8.2
thereof).
AGREEMENTS :
1.
Term of this Change of Control
Agreement
. Except as otherwise provided herein, this Change of
Control Agreement shall commence on the date specified above and
shall continue in effect until the third anniversary of the date
set forth above; provided, however ,
that if a Change of Control of the Company shall occur during the
term of this Change of Control Agreement, this Change of Control
Agreement shall continue in effect for a period of twelve (12)
months beyond the date of such Change of Control. If,
prior to the earlier of the third anniversary of this Change of
Control Agreement or a Change of Control, Executive’s
employment with the Company terminates for any reason or no reason,
or if Executive no longer serves as an executive officer of the
Company, this Change of Control Agreement shall immediately
terminate, and Executive shall not be entitled to any of the
compensation and benefits described in this Change of Control
Agreement. Any rights and obligations accruing before
the termination or expiration of this Change of Control Agreement
shall survive to the extent necessary to enforce such rights and
obligations.
2.
“Change of Control.” For purposes of
this Change of Control Agreement, “Change of Control”
shall mean any one or more of the following events occurring after
the date of this Change of Control Agreement:
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(a)
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The
purchase or other acquisition by any one person, or more than one
person acting as a group, of stock of the Company that, together
with stock held by such person or group, constitutes more than 50%
of the total combined value or total combined voting power of all
classes of stock issued by the Company; provided, however ,
that if any one person or more than one person acting as a group is
considered to own more than 50% of the total combined value or
total combined voting power of such stock, the acquisition of
additional stock by the same person or persons shall not be
considered a Change of Control;
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(b)
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A
merger or consolidation to which the Company is a party if the
persons who were shareholders of the Company immediately prior to
the effective date of such merger or consolidation have,
immediately following the effective date of such merger or
consolidation, beneficial ownership (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of less than fifty percent
(50%) of the total combined voting power of all classes of
securities issued by the surviving entity for the election of
directors of the surviving corporation;
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(c)
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Any
one person, or more than one person acting as a group, acquires or
has acquired during the twelve (12) month period ending on the date
of the most recent acquisition by such person or persons, direct or
indirect beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of stock of the Company
constituting more than fifty-percent (50%) of the total combined
voting power of all classes of stock issued by the
Company;
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(d)
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The
purchase or other acquisition by any one person, or more than one
person acting as a group, of all or substantially all of the total
gross value of the assets of the Company during the twelve-month
period ending on the date of the most recent purchase or other
acquisition by such person or persons. For purposes of
this Section 2(d), “gross value” means the value of the
assets of the Company or the value of the assets being disposed of,
as the case may be, determined without regard to any liabilities
associated with such assets;
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(e)
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A
change in the composition of the Board of Directors of the Company
at any time during any consecutive twelve (12) month period such
that the “Continuity Directors” cease for any reason to
constitute at least a sixty-six and two-thirds percent (66-2/3%)
majority of the Board. For purposes of this event,
“Continuity Directors” means those members of the
Company’s Board of Directors who either:
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(1)
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were
directors at the beginning of such consecutive twelve (12) month
period; or
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(2)
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were
elected by, or on the nomination or recommendation of, at least a
two-thirds (2/3) majority of the then-existing Board of
Directors.
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In
all cases, the determination of whether a Change of Control
has occurred shall be made in accordance with Code Section
409A and the regulations, notices and other guidance of
general applicability issued thereunder.
As
used in this Change of Control Agreement, “person”
means and includes any individual, partnership, corporation,
business trust, limited liability company, limited liability
partnership, joint stock company, trust, unincorporated
association, persons acting as a group, joint venture or other
entity, and any affiliate of any of the
foregoing. “Affiliate” means and
includes any entity that directly or indirectly controls, is
controlled by, or is under common control with any such
person, where “control” means (i) the power to
direct (or cause the direction of) the management and policies
of an entity, whether through ownership of voting securities,
through contract or otherwise, or (ii) ownership of at least
twenty percent (20%) of the voting stock, shares or interests
of such entity.
3.
“Change of Control Termination.” For
purposes of this Change of Control Agreement, “Change of
Control Termination” shall mean any of the following events
occurring upon or within twelve (12) months after a Change of
Control:
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(a)
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The
termination of Executive’s employment by the Company for any
reason, except for termination by the Company for
“cause.” For purposes of this Change of
Control Agreement, “cause” shall have the same meaning
as set forth in Executive’s employment agreement with the
Company, as amended from time to time.
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For
purposes of this Section 3(a), an act or failure to act by
Executive shall not be “willful” unless it is
done, or omitted to be done, in bad faith and without any
reasonable belief that Executive’s action or omission
was in the best interests of the Company.
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(b)
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The
termination of employment with the Company by Executive for
“Good Reason.” Such termination shall be
accomplished by, and effective upon, Executive giving written
notice to the Company of his decision to
terminate. “Good Reason” shall mean a good
faith determination by Executive that any one or more of the
following events has occurred upon or within twelve (12) months
after a Change of Control; provided, however ,
that such event shall not constitute Good Reason if Executive has
expressly consented to such event in writing or if Executive fails
to provide written notice of his decision to terminate within
ninety (90) days of the occurrence of such event:
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(1)
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A
change in Executive’s reporting title(s), status,
position(s), authority, duties or responsibilities as an executive
of the Company as in effect immediately prior to the Change of
Control which, in Executive’s reasonable judgment, is
material and adverse (other than, if applicable, any such change
directly attributable to the fact that the Company is no longer
publicly owned); provided, however ,
that Good Reason does not include such a change that is remedied by
the Company promptly after receipt of notice of such change is
given by Executive;
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(2)
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A
reduction by the Company in
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