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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James D. Anderson
15124 Lynn Terrace
Minnetonka, Minnesota 55345
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(“Executive”)
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Effective Date:
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September 1, 2009
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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 September 1, 2009 (the “Employment
Agreement”), and is an integral part of the Employment
Agreement between the parties.
B.
Executive currently serves as the Senior Vice President, Client
Services Operations of the Company. 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
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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
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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:
(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 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;
(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 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
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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 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:
(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.
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:
(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
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.
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
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“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:
(1)
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;
(2)
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 effect immediately
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