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Exhibit
10.1
EXECUTIVE SEVERANCE
AGREEMENT
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Planar
Systems, Inc. |
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(“Company”) |
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1195 NW
Compton Drive |
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Beaverton, Oregon 97006 |
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[Executive’s Name] |
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(“Executive”) |
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[Executive’s Address] |
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| DATE: |
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June 25,
2007 |
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(“Effective Date”) |
RECITAL:
The Board of Directors of the
Company considers the maintenance of sound and vital management to
be essential to protecting and enhancing the best interests of the
Company and its shareholders. In this connection, and in order to
induce Executive to remain employed by the Company in the face of
longer-term uncertainties including a potential change of control
of the Company and the potential impact of such uncertainties on
Executive’s position with the Company, this Agreement, which
has been approved by the Company’s Board of Directors, sets
forth the severance benefits that the Company will provide to
Executive in the event Executive’s employment with the
Company is terminated under the circumstances described in this
Agreement.
AGREEMENT:
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 “
Board ” shall mean the Board of Directors of the
Company.
1.2 “
Cause ” shall mean any of the following:
(i) Executive’s fraud
or misrepresentation;
(ii) Executive’s theft
or embezzlement of Company assets;
(iii) Executive’s
commission of a felony involving moral turpitude;
(iv) Executive’s
continued failure to satisfactorily perform the duties reasonably
assigned to Executive (including observing all applicable Company
employment polices), for a period of thirty (30) days after a
written demand for such satisfactory performance that specifically
and with reasonable detail identifies the manner in which it is
alleged that Executive has not satisfactorily performed such
duties; or
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XECUTIVE S EVERANCE A
GREEMENT
[Executive’s Name]
(v) Executive’s
material breach of this Agreement that, if curable, has not been
cured within thirty (30) days after written notice to
Executive of such breach.
1.3 “ Change
in Control ” shall mean the occurrence of any of the
following events:
(i) The approval by the
Company’s shareholders of a merger, statutory plan of
exchange 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, plan of
exchange or consolidation would have 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 for election of directors of the surviving corporation
immediately following the effective date of such merger or
consolidation;
(ii) The acquisition (other
than directly from the Company) by any person or entity, or group
of associated persons or entities acting in concert, of direct or
indirect beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of securities of the Company
representing twenty-five percent (25%) or more of the total
combined voting power of the Company’s then issued and
outstanding securities;
(iii) The approval by the
Company’s shareholders of the sale, lease, exchange or other
transfer (in one or a series of related transactions) of all or
substantially all of the assets of the Company to any person or
entity that is not a wholly owned subsidiary of the
Company;
(iv) The approval by the
Company’s shareholders of any plan or proposal for the
liquidation or dissolution of the Company; or
(v) A change in the Board
with the result that the members of the Board on the Effective Date
hereof (the “Incumbent Directors”) no longer constitute
a majority of such Board, provided that any person becoming a
director whose election or nomination for election was supported by
a majority of the Incumbent Directors shall be considered an
Incumbent Director for purposes hereof.
1.4 “
Company ” shall mean Planar Systems, Inc. and any
successor in interest by way of consolidation, operation of law,
merger or otherwise.
1.5 “
Disability ” shall mean the inability of Executive to
perform, with reasonable accommodation, if necessary, any essential
functions of his or her position under this Agreement because of
physical or mental incapacity for a period of one hundred twenty
(120) days in the aggregate during any twelve (12)-month
period.
1.6 “ Good
Reason ” shall mean that any one or more of the following
events occurs or condition exists, without Executive’s
express written consent; provided, however, that Executive shall
have given written notice to Company of such event or condition
alleged to comprise “Good Reason” and thirty
(30) days shall have passed with no cure having been
made:
(i) A reduction by the
Company in Executive’s Base Salary or any failure to pay
Executive, when due, any compensation or benefits to which
Executive is entitled;
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XECUTIVE S EVERANCE A
GREEMENT
[Executive’s Name]
(ii) A significant reduction
by the Company in the total benefits available to Executive under
cash incentive, stock incentive or other employee benefit plans
after a Change of Control as compared to the total package of such
benefits as in effect prior to the Change of Control;
(iii) A requirement by the
Company that Executive be based anywhere other than within 25 miles
of Beaverton, Oregon;
(iv) The Company’s
failure to obtain an agreement, reasonably satisfactory to
Executive, from any successor or assign of the Company to assume
and agree to perform the Company’s obligations under this
Agreement;
(v) Reassignment of Executive
to a different title, job or responsibilities that result in a
significant decrease in the level of responsibility of Executive
after a Change of Control as compared with Executive’s level
of responsibility for the Company’s operations prior to the
Change of Control; provided that Good Reason shall not exist if
Executive continues to have substantially the same or greater
responsibilities for the former Company operations after the Change
of Control as Executive had prior to the Change of Control even if
the former Company operations are a subsidiary or division of the
surviving company; or
(vi) Any material breach of
this Agreement by the Company.
ARTICLE 2
EMPLOYMENT
2.1 Employment .
Executive is currently employed by the Company as
. The Company and Executive acknowledge that either party may
terminate this employment relationship at any time for any or no
reason, subject to the obligation of the Company to provide the
severance benefits set forth in this Agreement in accordance with
the terms hereof.
2.2 Duties . Executive
shall devote his full-time and best efforts to the Company and to
fulfilling the duties of his position. Executive shall comply with
the Company’s policies and procedures to the extent that they
are not inconsistent with this Agreement, in which case the
provisions of this Agreement shall prevail.
2.3 Term . The term of
this Agreement (the “Term”) shall begin on the
Effective Date hereof and remain in effect until the earlier of:
(i) termination pursuant to Article 4 of this Agreement or
(ii) October 1, 2008; provided, however, that commencing on
October 1, 2008 and each anniversary thereafter, the Term
shall automatically be extended for one additional year unless at
least 90 days prior to such anniversary, Executive or the Company
shall have given written notice to the other that the Term shall
not be extended; provided further, however, that if a Change in
Control shall have occurred, the Agreement shall remain in effect
until the earlier of: (i) termination pursuant to
Article 4 of this Agreement or (ii) twenty-four
(24) months following the Change in Control.
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XECUTIVE S EVERANCE A
GREEMENT
[Executive’s Name]
ARTICLE 3
TERMINATION
3.1 Termination . This
Agreement may be terminated by either party by providing the other
party with written notice that indicates the specific termination
provision in this Agreement relied upon and sets forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination under the provision so indicated (a
“Notice of Termination”). For purposes of
Section 3, if Executive is assigned additional or different
titles, tasks or responsibilities from those currently held or
assigned, consistent with Executive’s general areas of
professional expertise and with no decrease in annual base
compensation, whether with the Company or any subsidiary of the
Company, such circumstances shall not constitute termination of
Executive’s Employment or this Agreement.
3.2 Executive’s
Resignation. Executive may terminate this Agreement and
Executive’s employment upon thirty (30) days’
advance Notice of Termination. Upon termination by Executive
pursuant to this Section 3.2, Company shall pay
Executive:
(i) Base Salary and Annual
Bonus, if any, earned and payable through the effective date of
such termination, together with any other compensation or benefits
that have been earned or become payable as of the date of
termination but have not yet been paid to Executive;
(ii) Pay-out of accrued paid
time off in accordance with Company policies; and
(iii) Reimbursement of
business expenses incurred through the effective date of such
termination (items 3.2 (i), (ii) and (iii) shall be
referred to collectively as the “Accrued
Obligations”).
3.3 Termination by the
Company for Cause . Company may terminate this Agreement and
Executive’s employment immediately for Cause upon Notice of
Termination. Upon termination by Company for Cause pursuant to this
Section 3.3, Executive shall be paid the Accrued
Obligations.
3.4 Termination by the
Company Without Cause. The Company may terminate this Agreement
and Executive’s employment without Cause upon thirty
(30) days’ advance Notice of Termination; provided,
however, that the Company may in its sole discretion make
termination of the Agreement and Executive’s employment
effective immediately upon Notice of Termination, in which case, in
addition to the payments otherwise required by this
Section 3.4, Executive shall be paid his Base Salary through a
notice period of thirty (30) days. The Company’s failure
to at any time renew the term of this Agreement under
Section 2.3 shall be deemed a termination of this Agreement
and Executive’s employment without Cause. If the Company
terminates Executive’s employment without Cause pursuant to
this Section 3.4, Executive shall be entitled to receive the
Accrued Obligations and, subject to satisfaction of the Release of
Claims requirement specified in Section 3.13 below, shall be
entitled to the benefits specified under either
subparagraph (i) or subparagraph (ii) below:
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XECUTIVE S EVERANCE A
GREEMENT
[Executive’s Name]
(i) No Change in Control
Has Occurred . If there has been no Change in Control within
twenty-four (24) months prior to Executive’s termination
pursuant to this Section 3.4 or within ninety (90) days
following Executive’s termination pursuant to this
Section 3.4:
A. For a period of twelve
(12) months following the effective date of Executive’s
termination, the Company shall continue to pay Executive his/ her
Base Salary at the rate in effect just prior to the time a Notice
of Termination is delivered, payable according to the
Company’s normal payroll practices;
B. If Executive elects to
continue his Company-provided group health benefits at the level in
effect as of the date of termination under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”), the
Company shall pay the premiums for Executive’s COBRA
continuation coverage (for Executive and Executive’s
dependents, if applicable) for a period of up to eighteen
(18) months; and
C. Company shall make
available to Executive for a period of twelve (12) months
after termination, outplacement services provided that (i) the
outplacement program and the provider of which shall be selected by
Company and (ii) the outplacement services are performed
within such 12-month period.
(ii) Change in Control Has
Occurred . If Executive’s termination pursuant to this
Section 3.4 occurs within twenty-four (24) months
following a Change in Control or if Executive is terminated
pursuant to this Section 3.4 and a Change in Control occurs
within ninety (90) days following Executive’s
termination:
A. Each month for a period of
twelve (12) months following the effective date of
Executive’s termination, the Company shall continue to pay
Executive: (i) Executive’s Base Salary at the rate in
effect just prior to the time a Notice of Termination is delivered
plus (ii) one-twelfth of 100% of Executive’s targeted
annual bonus (or other variable compensation program) for the year
in which Notice of termination is delivered. Payments shall be made
according to the Company’s normal payroll
practices;
B. If Executive elects to
continue his Company-provided group health benefits at the level in
effect as of the date of termination under COBRA, the Company shall
pay the premiums for Executive’s COBRA continuation coverage
(for Executive and Executive’s dependents, if applicable) for
a period of up to eighteen (18) months;
C. Company shall make
available to Executive for a period of twelve (12) months
after termination, outplacement services provided that (i) the
outplacement program and the provider of which shall be selected by
Company and (ii) the outplacement services are performed
within such 12-month period; and
D. All outstanding options to
purchase stock of the Company (or any successor) held by Executive
that are subject to time-based vesting and all grants of restricted
Company stock held by Executive that are subject to time-based
vesting shall become fully vested as of the effective date of
Executive’s termination. In the event that
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XECUTIVE S EVERANCE A
GREEMENT
[Executive’s Name]
there is a Change in Control
within 90 days after Executive’s employment was
terminated by the Company pursuant to this Section 3.4 and
stock options or stock grants were terminated or forfeited to the
Company upon Executive’s employment termination pursuant to
their terms (because the Change in Control had not occurred at the
time of employment termination), the Company shall pay
Ex
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