EX-10.(F) 5 d85151ex10-f.txt FORM 2 OF SEVERANCE AGREEMENT - DECEMBER 15, 2000 1 1 EXHIBIT 10(f) SEVERANCE AGREEMENT AGREEMENT made as of December 15, 2000, between Harte-Hanks, Inc., a Delaware corporation (the "Company"), and __________ (the "Executive"). WHEREAS, the Executive is currently serving as a Senior Vice President of the Company; WHEREAS, the Executive possesses an intimate knowledge of the business and affairs of the Company, its policies, methods, personnel and plans for the future and has acquired contacts of considerable value to the Company; and WHEREAS, the Board of Directors of the Company (the "Board") recognizes that the Executive's contribution to the growth and success of the Company has been substantial and wishes to offer an inducement to the Executive to remain in the employ of the Company; NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and agreements of the parties herein contained, this Agreement sets forth benefits which the Company will pay to Executive in the event of termination of Executive's employment under the circumstances described herein: 1. Term. Except as otherwise provided in Section 4, the term of this Agreement shall be effective upon a Change in Control (as defined herein) and continue until the earlier of (i) the expiration of the second anniversary of the occurrence of a Change in Control, (ii) the Executive's death, or (iii) the Executive's earlier voluntary retirement (except as provided in Section 3(a)(2)) (the "Term"). 2. Definitions. (a) Cause. For "Cause" means that the Executive shall have committed: (i) an intentional material act of fraud or embezzlement in connection with his duties or in the course of his employment with the Company; (ii) intentional wrongful material damage to property of the Company; or (iii) intentional wrongful disclosure of material secret processes or material confidential information of the Company. For the purposes of this Agreement, no act, or failure to act, on the part of the Executive will be deemed "intentional" unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. (b) Change in Control. A "Change in Control" of the Company shall have occurred if any of the following events shall occur: (i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than 60% of the combined voting power of the then outstanding securities of the remaining corporation or legal person or its ultimate parent immediately after such transaction is received in respect of or in exchange for voting securities of the Company pursuant to such transaction; 2 2 EXHIBIT 10(f) (ii) The Company sells all or substantially all of its assets to any other corporation or other legal person and as a result of such sale less than 60% of the combined voting power of the then outstanding securities of such corporation or legal person or its ultimate parent immediately after such transaction is received in respect of or in exchange for voting securities of the Company pursuant to such sale; (iii) Any person (including any "person" as such term is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), has become the beneficial owner (as the term "beneficial owner, is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities which when added to any securities already owned by such person would represent in the aggregate 30% or more of the combined voting power of the then outstanding securities of the Company; or (iv) Such other events that cause a Change in Control of the Company as determined by the Board in its sole discretion. (c) Code. The "Code" shall mean the Internal Revenue Code of 1986, as amended. (d) Disability. "Disability" shall have the meaning given to disability in the Company's long term disability insurance plan. (e) Severance Compensation. The "Severance Compensation" shall be a lump sum cash amount equal to 200% of the sum of (A) the annual base salary of the Executive in effect immediately prior to the Change in Control or the Termination Date, whichever is larger, plus (B) the average of the bonus or incentive compensation of the Executive, received from the Company for the two fiscal years preceding the year in which the Change in Control occurred or for the two fiscal years preceding the year in which the Termination Date occurs, whichever is larger. (f) Termination Date. The "Termination Date" shall be the date upon which the Executive or the Company terminates the employment of the Executive. 3. Rights of Executive Upon Change in Control and Termination. (a) The Company shall provide the Executive, within ten days following the Termination Date, or, if later, within ten days following the execution of the release described in Section 7 below, Severance Compensation in lieu of compensation to the Executive for periods subsequent to the Termination Date, if, following the occurrence of a Change in Control, any of the following events shall occur: (1) the Company terminates the Executive's employment during the term of this Agreement other than for any of the following reasons: (i) the Executive dies; (ii) the Executive suffers a Disability and is unable to work (with or without reasonable accommodation) for a period of 180 consecutive days; or (iii) for Cause, 3 3 EXHIBIT 10(f) (2) the Executive terminates his employment after such Change in Control and the occurrence of at least one of the following events: (i) A material adverse change in the nature or scope of the authorities, functions or duties attached to the position with the Company that the Executive had immediately prior to the Change in Control; a reduction in the Executive's salary, bonus or incentive compensation or a significant reduction in scope or value of other monetary or non-monetary benefits (other than benefits pursuant to a broad based employee benefit plan) to which the Executive was entitled from the Company immediately prior to the Change in Control, any of which is not remedied within ten calendar days after receipt by the Company of written notice from the Executive of such change, reduction, alteration or termination, as the case may be; (ii) A determination by the Executive made in good faith that as a result of a Change in Control and a change in circumstances thereafter, he has been rendered substantially unable to carry out, or has been substantially hindered in the performance of, the authorities, functions or duties attached to his position immediately prior to the Change in Control, which situation is not remedied within ten calendar days after receipt by the Company of written notice from the Executive of such determination; (iii) The Company shall require the Executive to relocate his principal location of work from the location thereof immediately prior to the Change in Control, or to travel away from his office in the course of discharging his responsibilities or duties significantly more than required of him prior to the Change in Control without, in either case, the Executive's prior written consent; or (iv) the Company commits any material breach of this Agreement. (3) the Executive terminates his employment for any reason during the 30-day period following the first anniversary of the Change in Control. (b) Severance Compensation pursuant to this Section 3 will not be subject to setoff or mitigation. (c) Upon a Change in Control, or in the event the Company becomes obligated to make the payments specified in Section 4(a), all stock options previously granted by the Company to the Executive and not yet exercised will become vested and fully exercisable by the Executive. Such options shall remain exercisable for their original term; provided, however, that the Company has the right to require the Executive to exercise such options within 90 days after receipt of written notice to the Executive. If the Executive fails to exercise his options within such 90-day period, the Company has the right to cancel the options. (d) In the event the Company becomes obligated hereunder to pay the Executive the Severance Compensation or the payments specified in Section 4(a), the Company shall also pay the Executive a lump sum cash payment in the amount necessary to make continuation coverage (COBRA) payments under the Company's group health insurance plan for a period of 18 months. (e) If the amounts due to the Executive in connection with a Change of Control under this and/or other agreements, plans or arrangements would result in an "excess parachute payment" within 4 4 EXHIBIT 10(f) the meaning of Section 280G of the Code, and the total amounts due to the Executive would have to be reduced by more than ten percent (10%) to avoid such an "excess parachute payment," then the Company shall pay to Executive an additional amount in cash (a "Gross-Up Payment") equal to the amount necessary to cause the amount of the aggregate after-tax compensation and benefits received by the Executive hereunder (after payment of the excise tax under Section 4999 of the Code with respect to any excess parachute payment, and any state and federal income and FICA taxes with respect to the Gross-Up Payment) to be equal to the aggregate after-tax compensation and benefits such Executive would have received if Sections 280G and 4999 of the Code had not been enacted. A nationally recognized public accounting firm selected by the Company shall determine the amount of the Gross-Up Payment at the Company's expense. Notwithstanding the foregoing, no Gross-Up Payment shall be made if, in the opinion of tax counsel selected by the Company, no excess parachute payments would occur if the total amounts due to the Executive in connection with a Change of Control were reduced by ten percent (10%) or less; in such event, total benefits under this Agreement shall be reduced by up to ten percent (10%) in value in the following order: (i) cash amounts payable as Severance Compensation under Section 3(a) above shall be reduced first; (ii) if necessary, amounts for the maintenance of continuation coverage under Section 3(d) above shall be reduced next; and (iii) if necessary, the accelerated vesting of options as provided in Section 3(c) above shall be reduced. 4. Additional Rights of Executive Prior to Change in Control. (a) In the event the employment of the Executive with the Company is terminated prior to a Change in Control, the Company shall provide the Executive, within ten days following the Termination Date, Severance Compensation in lien of compensation to the Executive for periods subsequent to the Termination Date, if, and only if, (i) the Company terminates the Executive's employment without "Justification" (as defined herein); or (ii) the Executive terminates his employment with "Good Reason" (as defined herein). (b) "Justification" means that the Executive shall have (i) committed an act of fraud, dishonesty, gross misconduct or other unethical practices, or (H) materially failed to perform his duties to the satisfaction of the chief executive officer of the Company, which failure has not been cured within 60 days after receipt of written notice from the chief executive officer. (c) With "Good Reason" means that the Executive shall have terminated his employment following a reduction (which is instituted without his consent and which is not rescinded within 30 days after the Executive delivers written notice of objection to the chief executive officer) in his functions, duties or responsibilities (i) to a level that is not commensurate with those of an executive in the position of the Executive prior to such reduction (it being understood that the reassignment of any of the Executive's functions, duties or responsibilities to one or more persons who report directly or indirectly to the Executive is not such a reduction), or (ii) which causes the Employee's position with the Company to become one of lesser importance or scope. 5. Successors, Binding Agreement. This Agreement will be binding upon the Company, its successors and assigns, and all rights of the Executive hereunder shall inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributes, devisees and legatees. 5 5 EXHIBIT 10(f) 6. Notice. The Company shall give written notice to Executive within ten days after any Change in Control. Failure to give such notice shall constitute a material breach of this Agreement. For purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered or received after being mailed by United States registered mail, return receipt requested, postage prepaid, addressed as follows: If to the Executive: -------------------------------- c/o Harte-Hanks, Inc. 200 Concord Plaza Drive Suite 800 San Antonio, Texas 78216 If to the Company: Harte-Hanks, Inc. 200 Concord Plaza Drive Suite 800 San Antonio, Texas 78216 Attention: Donald R. Crews or to such other address as any party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. 7. Release. In consideration for the benefits and payments provided for under Sections 3(a) and 3(d) of this Agreement, unless such requirement is waived by the Board in its sole discretion, the Executive agrees to execute a release acceptable to the Company releasing the Company, its subsidiaries, shareholders, partners, officers, directors, employees and agents from any and all claims and from any and all causes of action of any kind, including but not limited to all claims or causes of action arising out of the Executive's employment with the Company or the termination of such employment. The Executive shall execute such release prior to or as soon as practicable after his Termination Date. 8. Miscellaneous. No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the Executive and such officer as may be specifically designated by the Board. No waiver by either party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, express or implied, unless specifically referred to herein, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement. The validity, interpretation, construction and performance of this Agreement shall be governed by the substantive laws of the State of Delaware, without regard to principles of conflicts of law. This Agreement replaces any prior severance agreement between the Company and the Executive. 9. Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. 10. Employment Rights. Nothing expressed or implied in this Agreement shall create any right or duty on the part of the Company or the Executive to have the Executive remain in the employment of the Company 6 6 EXHIBIT 10(f) prior to any Change in Control; provided, however, that any termination of employment of the Executive or removal of the Executive as an elected officer of the Company following the commencement of any discussion authorized by the Board of Directors of the Company with a third person that ultimately results in a Change in Control shall be deemed to be a termination or removal of the Executive after a Change in Control for purposes of this Agreement and shall entitle the Executive to all Severance Compensation. Notwithstanding any other provision hereof to the contrary, the Executive may, at any time during his employment with the Company upon the giving of 30 days prior written notice, terminate his employment hereunder. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any Severance Compensation, neither the Executive nor the Company shall have any further obligation or liability hereunder. 11. Withholding of Taxes. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or government regulation or ruling; provided, however, that no withholding pursuant to Section 4999 of the Code shall be made unless, in the opinion of tax counsel selected by the Company and acceptable to the Executive, such withholding relates to payments which result in the imposition of an excise tax pursuant to Section 4999 of the Code. IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year first above written. HARTE-HANKS, INC. By: ---------------------------------------- Title: Chairman and Chief Executive Officer EXECUTIVE ------------------------------------------- Donald R. Crews Peter E. Gorman Jacques D. Kerrest JDK's Agreement: (other than those customarily performed by a chief financial officer of a business of comparable size and complexity)