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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– and
–
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Randy W.
Strobel
2543 Bridle
Creek Trail
Chanhassen,
Minnesota 55317
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(“Executive”)
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Effective
Date:
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August 25,
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 August 25, 2008 (the “Employment Agreement”),
and is an integral part of the Employment Agreement between the
parties.
B. Executive
currently serves as the Senior Vice President, Chief Financial
Officer. 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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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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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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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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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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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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were directors
at the beginning of such consecutive twelve (12) month period;
or
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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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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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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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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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A reduction by
the Company in Executive’s base salary or an adverse
ch
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