EXHIBIT
10.2
Exhibit A
CHANGE OF CONTROL
AGREEMENT
Parties:
Analysts
International
Corporation (“Company”)
3601 West 76th
Street, Suite 200 Minneapolis, MN 55435
Elmer
Baldwin
(“Executive”)
Effective
Date: November 1, 2007
RECITALS:
1. Executive has been
employed by the Company since November 1, 2007 and currently serves
as the Chief Executive Officer of the Company, and Executive has
extensive knowledge and experience relating to the Company’s
business.
2. The parties
recognize that a “Change of Control” may materially
change or diminish Executive’s responsibilities and
substantially frustrate Executive’s commitment to the
Company.
3. 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/her position in the event of a Change of
Control, although no such Change of Control is now contemplated or
foreseen.
4. The parties
further desire to provide certain benefits payable upon a
termination of Executive’s employment following a Change of
Control.
5. The parties
further acknowledge and agree that this Agreement supersedes any
and all prior agreements relating to benefits payable upon a
termination of Executive’s employment following a Change of
Control.
AGREEMENTS:
1.
Term of Agreement. Except as otherwise provided
herein, this Agreement shall commence on the date executed by the
parties 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
Agreement, this 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 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 Agreement shall immediately
terminate, and
Executive shall
not be entitled to any of the compensation and benefits described
in this Agreement. Any rights and obligations accruing
before the termination or expiration of this Agreement shall
survive to the extent necessary to enforce such rights and
obligations.
2.
“Change of Control.” For purposes of
this Agreement, “Change of Control” shall mean any one
or more of the following events occurring after the date of this
Agreement:
(a) 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;
(b) A merger or
consolidation to which the Company is a party if the individuals
and entities 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;
(c) 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;
(d) The purchase or
other acquisition by any one person, or more than one person acting
as a group, of 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;
(e) A change in the
composition of the Board 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 Board
who either:
(1) were directors at
the beginning of such consecutive twelve (12) month period;
or
(2) 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.
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.
3.
“Change of Control Termination.” For
purposes of this Agreement, “Change of Control
Termination” shall mean any of the following events occurring
upon or within twelve (12) months after a Change of
Control:
(a) The termination of
Executive’s employment by the Company for any reason, except
for termination by the Company for
“cause.” For purposes of this Agreement,
“cause” shall have the same meaning as set forth in
Executive’s employment agreement with the Company, if any, as
amended from time to time. If Executive does not have an
employment agreement with the Company, then “cause”
shall mean (i) Executive’s material failure or neglect, or
refusal to perform, the duties and responsibilities of
Executive’s position and/or the reasonable direction of the
Board of Directors; (ii) Executive’s material failure to
comply with the reasonable policies, regulations and directives of
the Company as in effect from time to time; (iii) the commission by
Executive of any willful, intentional or negligent act that has the
effect of materially injuring the reputation, business or
performance of the Company; or (iv) Executive’s conviction
of, or Executive’s guilty or nolo contendere plea with
respect to, any crime punishable as a felony; or Executive’s
conviction of, or Executive’s guilty or nolo contendere plea
with respect to, any crime involving moral turpitude; or any bar
against Executive from serving as a director, officer or executive
of any firm the securities of which are publicly-traded. 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.
(b) 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/her 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/her 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 not 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 change
in the form or timing of the payment thereof, as in
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