Form 8-K BLACK BOX CORP For: Nov 17
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E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
The Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): November 14, 2016
Black Box Corporation
(Exact Name of Registrant as Specified in its Charter)
(Exact Name of Registrant as Specified in its Charter)
Delaware | 0-18706 | 95-3086563 |
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
1000 Park Drive Lawrence, Pennsylvania | 15055 | |
(Address of Principal Executive Offices) | (Zip Code) | |
Registrant’s telephone number, including area code: (724) 746-5500
N/A |
(Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On November 14, 2016, the Board of Directors (the “Board”) of Black Box Corporation (the “Company”) appointed Anthony J. Massetti as Senior Vice President, Chief Financial Officer and Treasurer of the Company, effective November 17, 2016 (and, in those roles, he will serve as the Company's principal financial officer and principal accounting officer). Mr. Massetti will succeed Timothy C. Huffmyer in those roles, who will transition to the role of Vice President, Finance, effective at the same time.
Mr. Massetti, age 55, most recently served as Senior Vice President and Chief Financial Officer of Avaya Corporation, a provider of business collaboration and communications solutions, from 2009 to May 2013. Prior to joining Avaya, Mr. Massetti served as Senior Vice President and Chief Financial Officer of NCR Corporation, a provider of technology and services for business communications, during 2008 and 2009. Prior to that, Mr. Massetti held several roles with QLogic Corporation from 2002 to 2008, including Senior Vice President and Chief Financial Officer. Mr. Massetti received a B.B.A. in Accounting from Pace University in 1983.
In connection with Mr. Massetti’s appointment as Senior Vice President, Chief Financial Officer and Treasurer of the Company, the Company entered into an offer letter and the Company’s standard executive officer agreement with Mr. Massetti.
Pursuant to the offer letter, Mr. Massetti will be paid an annual base salary of $375,000 and will be eligible to receive an annual bonus with a target bonus equal to 80% of his annual base salary and a long-term incentive with a target payout of 200% of his base salary. He will also receive a retention grant in the form of RSUs having a grant date value of $100,000. He will be reimbursed reasonable costs associated with his relocation to the Pittsburgh, Pennsylvania area and be provided temporary living reimbursement for twelve months prior to his relocation. As an officer, he will be entitled to the benefit of the Company’s directors’ and officers’ insurance.
The standard executive officer agreement provides for certain benefits in the event of a qualifying termination of his employment following a change-in-control of the Company (a so-called “double trigger” agreement). The agreement does not provide any severance benefits prior to a change-in-control of the Company and does not provide for any tax gross-up of severance payments. The agreement contains provisions regarding non-competition, confidentiality and intellectual property. The original term of the agreement is five (5) years with an automatic renewal on a one-year basis thereafter absent notice of nonrenewal six (6) months prior to the renewal date; provided, however, that if a change-in-control occurs during the initial or any renewal period, the agreement will survive until the second anniversary of the date of the change-in-control.
These summaries are qualified in their entirety by reference to the offer letter and agreement with Mr. Massetti attached hereto as Exhibits 10.1 and 10.2 and incorporated herein by reference thereto.
On November 16, 2016, in connection with Mr. Huffmyer’s new role, he entered into a retention agreement with the Company. If Mr. Huffmyer continues to serve in his new role until the Company
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files its annual report for fiscal 2017 (expected to be mid-May 2017) then, subject to certain conditions, Mr. Huffmyer would receive a retention bonus of $250,000 contingent on successful completion of the fiscal 2017 audit and a lump sum severance payment of $336,600 at the expiration of this transition period. Mr. Huffmyer will continue to receive his current pay and continue to participate in the current fiscal 2017 incentive plans. Subject to agreement by the Company, not to be unreasonably withheld, Mr. Huffmyer may elect to transition out early, after the filing of the Company’s Form 10-Q for the third quarter of fiscal 2017, expected in February 2017. If Mr. Huffmyer chooses to elect the early transition option, Mr. Huffmyer will still receive the lump sum severance payment, subject to certain conditions, but will not receive the retention bonus.
The summary of this letter agreement is qualified in its entirety by reference to the letter agreement with Mr. Huffmyer attached hereto as Exhibit 10.3 and incorporated herein by reference thereto.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. | Description |
10.1 | Offer Letter between the Company and Anthony J. Massetti dated November 11, 2016 |
10.2 | Agreement between the Company and Anthony J. Massetti dated November 17, 2016 |
10.3 | Agreement between the Company and Timothy C. Huffmyer dated November 16, 2016 |
10.4 | Press release dated November 17, 2016 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Black Box Corporation
Date: November 17, 2016 By: /s/ Ronald Basso
Ronald Basso
Executive Vice President, General Counsel and Secretary
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Exhibit Index
Exhibit No. | Description |
10.1 | Offer Letter between the Company and Anthony J. Massetti dated November 11, 2016 |
10.2 | Agreement between the Company and Anthony J. Massetti dated November 17, 2016 |
10.3 | Agreement between the Company and Timothy C. Huffmyer dated November 16, 2016 |
10.4 | Press release dated November 17, 2016 |
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November 11, 2016
Strictly Confidential
Anthony J. Massetti
34879 Bookhammer Landing Road
Lewes, DE 19958
Dear Anthony:
I am pleased to offer you the position of Senior Vice President, Chief Financial Officer and Treasurer with Black Box Corporation of Pennsylvania d/b/a Black Box Network Services (“Black Box”), reporting to E.C. Sykes. Your position will be located in Lawrence, Pennsylvania. Should you accept this offer, your annual salary as an exempt team member will be $375,000 paid on a bi-weekly basis (payroll periods are subject to change in accordance with changes in the applicable payroll policy). Your projected start date with Black Box is November 15, 2016.
In addition, you are eligible for a Black Box Bonus Plan beginning with fiscal year 2017 (prorated per plan guidelines). Upon 100% achievement of your Plan's objectives, and in accordance with your Plan's requirements, you are eligible to receive a prorated target bonus payout of 80% of your annual eligible earnings after the close of the fiscal year-end. Details of the Plan’s objectives and requirements will be provided in a separate communication.
You will be recommended for participation in the Black Box Long Term Incentive Plan (LTIP) for a value of approximately 200% of your base salary. The Board typically makes decisions about LTIP participation and amounts in May of each year. This amount normally consists of restricted stock, stock options and performance shares.
You will receive additional financial consideration in the form of Restricted Stock Units. This will consist of a Restricted Stock Unit grant for $100,000 of Black Box Common Stock (RSUs), ratably vesting over a three-year period based on your start date, with additional details of the RSU grant provided separately. The RSUs will be granted at or near your start date, subject to Compensation Committee approval.
This offer is subject to approval by Black Box’s Board of Directors and is made contingent on you passing the Company’s pre-employment screening process, which includes a background check, education verification and drug screening.
Background Check and Drug Screen
In order to perform a background check and drug screen, the Company requires your authorization. Enclosed is a background check Disclosure and Release of Information Authorization form for your review and signature. Please complete both forms and return them to Jillian Petras via fax or e-mail as listed below. It is important that you return these as quickly as possible since your employment is contingent on your successful completion of the background check and drug screen.
Once Jillian receives your authorization, she will notify First Advantage, our background check vendor, to send you the drug test order form along with an address for a drug testing facility in your area. This will be sent via email to the email address provided on your employment application. You must complete the drug screening within the timeframe specified on the form. If you fail to do so, our offer for employment may be withdrawn.
Massetti Offer 11-11-16
Jillian Petras, Talent Acquisition Leader
Fax: (724) 873-6502
Benefits
As a full-time team member, you will be eligible to participate in Black Box’s comprehensive benefits plan. These benefits plans are comprised of various insurance plans, including medical, dental, vision, life, short & long term disability, flexible spending accounts, Paid Time Off, and holidays. The benefits, their effective dates, eligibility requirements and cost sharing features are summarized in the attached benefits documentation and will be explained at the time of your new team member orientation.
You will be automatically enrolled in the Charles Schwab 401K plan at a 6% deferral rate unless you opt out within 45 days of your hire date.
Relocation Program
In addition, you are eligible to participate in the Black Box Relocation Program. Black Box has partnered with Lexicon Relocation (“Lexicon”) to assist you in coordinating all aspects of your relocation. You will be reimbursed for reasonable, necessary and properly authorized expenses covered under the policy. Upon receiving authorization from Black Box, Lexicon will initiate the relocation process, and you will be contacted by a Relocation Consultant who will be your primary point of contact throughout your move. You should not take any actions in regard to your relocation until you speak with your representative at Lexicon. Failure to do so may result in a loss of benefits. If you leave the business prior to working for Black Box for two years, you will have to repay a prorated portion of your relocation expenses. Additional details will be provided to you through Lexicon. You will be provided twelve (12) months of temporary living in the Pittsburgh area.
Form I-9 Employment Eligibility Verification
To be eligible for employment with Black Box, Federal law requires that you provide proof of citizenship or resident alien status by completing Form I-9, Employment Eligibility Verification. You will be required to complete Form I-9 in front of your hiring manager or a Company representative on your first day of employment.
Once we receive your acceptance of this offer, you will receive additional documents for completion by, or on, your first day of employment, including Form I-9. Please review Form I-9 to ensure you bring valid documents for review on your first day of employment.
Agreement
Due to the nature of our business and the commitment that is required of our team members having access to proprietary information, including our customer base, this offer is contingent on your signing and complying with the Black Box Agreement provided separately, which agreement contains restrictive covenants including non-compete, non-solicitation and confidentiality provisions. In accepting this offer, you are also acknowledging that you are not currently under a non-compete or other agreement which would prevent you from fulfilling the duties of the position being offered without breaching any such agreement. Please sign, date and return the Agreement with your acceptance of this offer.
Anthony, we are excited about you joining our team and believe this employment relationship will be mutually beneficial and rewarding. If you have any questions or need additional information, please do not hesitate to contact me. Welcome to Black Box.
If you agree and accept the terms outlined in this letter, please sign this letter and the Agreement and return them to HR Shared Services.
Massetti Offer 11-11-16
Sincerely,
/s/ David M. Pasternak
David M. Pasternak
Vice President of Human Resources
I understand that nothing contained in this Employment Offer Document, or in any policies, procedures or handbooks that I might receive, is intended by the Company to create an employment contract between itself and me. I understand that no promise or guarantee is binding upon the Company unless made in writing and signed by an Officer of the Company. I understand that I have the right to terminate my employment at any time, with or without any reason, and the Company retains the identical right regarding the discontinuation of my employment.
Accepted by:
/s/ Anthony J. Massetti 11/11/2016
Anthony J. Massetti Date Signed
Massetti Offer 11-11-16
CONFIDENTIAL
AGREEMENT
This Agreement (this "Agreement") is made as of this 17th day of November, 2016 by and between Black Box Corporation, a Delaware corporation (the "Corporation"), and Anthony J. Massetti, an individual residing in the State of New Jersey and an executive officer of Black Box (the "Executive").
WITNESSETH:
WHEREAS, Black Box (as defined in Section 1(e) below) desires to employ Executive, and Executive desires to be employed by Black Box, as its Senior Vice President, Chief Financial Officer and Treasurer; and
WHEREAS, Black Box has determined that it is in the best interests of Black Box to enter into an agreement with the Executive providing for certain payments and benefits to the Executive, and the Executive desires to enter into such an Agreement.
NOW, THEREFORE, the parties hereto, each intending to be legally bound hereby, agree as follows:
1. | Definition of Terms. The following terms when used in this Agreement shall have the meaning hereafter set forth: |
(a) | "Affiliate" shall mean, with respect to any person or legal entity, any other person or legal entity controlling, controlled by or under common control with such person or legal entity, which includes any and all direct and indirect subsidiaries of Black Box that employ or have an employment relationship with Executive. For purposes of this Agreement, Black Box and its Affiliates shall be collectively referred to as “Black Box”. |
(b) | "Cause for Termination" shall mean: |
(i) | the deliberate and intentional failure by the Executive to devote substantially the Executive's entire business time and best efforts to the performance of the Executive's duties (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or disability); |
or
(ii) | engaging by the Executive in gross misconduct materially and demonstrably injurious to Black Box; |
or
(iii) | the conviction .of the Executive of, or the entry of a plea of guilty or Nolo Contendre by the Executive to, a crime involving an act of fraud or |
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embezzlement against Black Box or the conviction of the Executive of, or the entry of a plea of Nolo Contendre by the Executive to, any felony involving moral turpitude;
or
(iv) | the Executive's material breach of Section 4 or Section 8 hereof which continues for ten (10) days after receiving written notice thereof from, Black Box or the Executive's willful failure to comply with instructions of the Board of Directors of Black Box provided that such instructions would not give rise to Good Reason for Termination. |
For purposes of this definition, no act, or failure to act, on the Executive's part shall be considered "deliberate and intentional" or to constitute gross misconduct unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive's action or omission was in the best interests of Black Box.
(c) | "Change-in-Control" shall mean a change in control of Black Box of such a nature that it would be required to be reported by Black Box in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as in effect on the date hereof ("Exchange Act"); provided, however, that: |
(i) | without respect to the foregoing, such a change in control shall be deemed to have occurred if any "person" (as such term is used in sections 13(d) and 14(d)(2) of the Exchange Act) or any "group" (as such term is defined in Rule 13d-5(b) promulgated under the Exchange Act), is or becomes the beneficial owner, directly or indirectly, of securities of Black Box representing twenty percent (20%) or more of the combined voting power of Black Box's then outstanding securities coupled with or followed by the existence of a majority of the board of directors of Black Box consisting of individuals other than individuals who either were directors of Black Box at least one year prior to or were nominated by those individuals who were directors of Black Box at least one year prior to such person or group becoming a beneficial owner, directly or indirectly, of securities of Black Box representing 20% or more of the combined voting power of Black Box's then outstanding securities; |
and
(ii) | without respect to the foregoing, if Black Box shall sell all or substantially all of its assets or shall merge, consolidate or reorganize with another company, then such a change in control shall be deemed to have occurred if (x) upon conclusion of the transaction less than fifty-one percent (51%) of the outstanding securities entitled to vote generally in the election of |
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directors of the acquiring company or resulting company are owned by persons who were the stockholders of Black Box generally prior to the transaction and following the transaction a majority of the board of directors of the acquiring company or resulting company consists of individuals other than individuals who either were directors of Black Box at least one year prior to or were nominated by those individuals who were directors of Black Box at least one year prior to such sale, merger, consolidation or reorganization or (y) following the transaction a person or group (as described in subclause (i) above) would be a beneficial owner, directly or indirectly, of securities of the acquiring company or resulting company representing 20% or more of the combined voting power of the acquiring company's or resulting company's then outstanding securities as described in subclause (i) above and a majority of the board of directors of the acquiring company or resulting company consists of individuals other than individuals who either were directors of Black Box at least one year prior to or were nominated by those individuals who were directors of Black Box at least one year prior to such sale, merger, consolidation or reorganization.
(d) | "Date of Termination" shall mean: |
(i) | if the Executive's employment is terminated for Disability, the date that a Notice of Termination is given to the Executive; |
(ii) | if the Executive's employment terminates due to the Executive's death or Retirement, the date of death or Retirement, respectively; |
(iii) | if the Executive decides to terminate employment upon Good Reason for Termination, the date specified by the Executive in a Notice of Termination, which date must be within sixty (60) days after the expiration of the Notice Period (as defined in Section 3(c) below); or |
(iv) | if the Executive's employment is terminated for any other reason, the date on which a termination becomes effective pursuant to a Notice of Termination or, if no Notice of Termination is provided, the date that the Executive's employment was terminated. |
(e) | "Disability" shall mean such incapacity due to physical or mental illness or injury as causes the Executive to be unable to perform the Executive's duties with Black Box during 90 consecutive days or 120 days during any six month period. |
(f) | "Good Reason for Termination" shall mean a material negative change in the Executive's service relationship with Black Box and any Affiliate (as defined in this Section 1(f) below) of Black Box, taken as a whole, without Executive's consent, on account of one or more of the following conditions: |
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(i) | A material diminution in Executive's base compensation; |
(ii) | A material diminution in Executive's authority, duties or responsibilities; or |
(iii) | A change in the geographic location at which Executive must report to and perform the majority of Executive's services of more than fifty (50) miles. |
(g) | "LTIP Plan" shall mean an incentive compensation plan of Black Box which would pay bonuses to the Executive based upon the achievement of specified goals during or at the end of an award period of more than one year (such as a three year incentive compensation plan). |
(h) | "Notice of Termination" shall mean a written statement which sets forth the specific reason for termination and, if such is claimed to be Cause for Termination or Good Reason for Termination, in reasonable detail the facts and circumstances thereof. |
(i) | "Options" shall mean any stock options issued pursuant to any present or future stock option plan of Black Box. |
(j) | "Retirement" shall mean a termination of the Executive's employment after age 65 or in accordance with any mandatory retirement arrangement with respect to an earlier age agreed to by the Executive. |
(k) | "Stock Awards" shall mean any stock-based awards, other than Options, including any stock appreciation rights, restricted stock awards, or performance stock awards, issued pursuant to any present or future stock plan of Black Box. |
2. | Termination by Black Box Due to Cause for Termination. Should the Board of Directors of Black Box determine that Cause for Termination exists, the Board of Directors of Black Box by resolution duly adopted may at that time or during a period of two months thereafter terminate the Executive's employment due to Cause for Termination by delivering a Notice of Termination. If the Board of Directors of Black Box fails to duly adopt within such two month period a resolution terminating the Executive's employment, then Black Box shall be deemed to have waived its right to terminate the Executive due to those circumstances which constituted the Cause for Termination previously found to exist by the Board. |
3. | Payments Following Termination of Employment After Change-in-Control. |
(a) | If during the term of this Agreement the Executive's employment with Black Box shall be terminated: |
(i) | due to the Executive's death or Disability, |
(ii) | by the Executive at any time prior to a Change-in-Control, |
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(iii) | by the Executive following a Change-in-Control other than the Executive's having terminated for Good Reason for Termination, |
(iv) | by Black Box at any time prior to a Change-in-Control, or |
(v) | by Black Box following a Change-in-Control in accordance with Section 2 hereof or in accordance with Retirement, |
then Black Box shall have no obligations hereunder to the Executive from and after the Date of Termination and the only obligations of Black Box to the Executive shall be in accordance with any other employment agreement applicable to the Executive and the then various policies, practices and benefit plans of Black Box.
(b) | If during the term of this Agreement a Change-in-Control shall have occurred and the Executive's employment shall have been involuntarily terminated on or before the second anniversary of the date of the Change-in-Control other than under the circumstances above described in subsection 3(a) (for example, a termination by the Executive for Good Reason for Termination within the foregoing period following a Change-in-Control shall entitle the Executive to the payments set forth in this subsection), then Black Box shall pay the Executive on or before the sixtieth (60th) day following the Date of Termination the following sums: |
(i) | in cash any unpaid portion of the Executive's full base salary for the period from the last period for which the Executive was paid to the Date of Termination; and |
(ii) | an amount in cash as liquidated damages for lost future remuneration equal to the sum of |
(A) | the product obtained by multiplying: |
(1) | the lesser of |
(i) | two (2.0), or |
(ii) | a number equal to the number of calendar months remaining from the Date of Termination to the date on which the Executive is 65 years of age (or, if earlier, the age agreed to by the Executive pursuant to any prior arrangement) divided by twelve, |
times
(2) | the sum of |
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(i) | the greater of |
(x) | the Executive's annual base salary for the year in effect on the Date of Termination, |
(y) | in the case of termination by the Executive for Good Reason for Termination, the Executive's annual base salary in effect on the date immediately preceding the date of the earliest event which gave rise to the termination by the Executive for Good Reason for Termination, |
or
(z) | the Executive's annual base salary for the year in effect on the date of the Change-in-Control, |
plus
(ii) | the greater of |
(x) | one third (1/3) of the aggregate cash bonuses or awards (including any payments under an LTIP Plan) received by the Executive as incentive compensation or bonus during the three calendar years immediately preceding the Date of Termination, |
(y) | in the case of termination by the Executive for Good Reason for Termination, one third (1/3) of the aggregate cash bonuses or awards (including any payments under an LTIP Plan) received by the Executive as incentive compensation or bonus during the three calendar years immediately preceding the date of the earliest event which gave rise to the termination by the Executive for Good Reason for Termination, |
or
(z) | one third (1/3) of the aggregate cash bonuses or awards (including any payments under an LTIP Plan) received by the Executive as |
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incentive compensation or bonus for the three calendar years immediately preceding the date of the Change-in-Control,
plus
(B) | if the Executive immediately preceding the date of the Change-in-Control is a participant in an LTIP Plan and the award period has not been completed prior to the date of the Change-in-Control, an amount equal to |
(1) | the total cash award or bonus which would have been received by the Executive under such LTIP Plan assuming that, in addition to any goals met on or before the date of the Change-in-Control, all goals that were to be measured after the date of the Change-in-Control were achieved and the Executive remained in the employ of Black Box at all relevant times under the LTIP Plan, |
less
(2) | any portion of the cash award or bonus for that award period previously paid to the Executive pursuant to such LTIP Plan. |
(c) | In order for the Executive to terminate for Good Reason for Termination under this Agreement, (i) the Executive must deliver a Notice of Termination to Black Box at 1000 Park Drive, Lawrence, PA 15055, Attn: General Counsel, and within ninety (90) days of the event constituting Good Reason for Termination, (ii) the event must remain uncorrected during the Notice Period and (iii) the Date of Termination must occur within sixty (60) days after the expiration of the Notice Period, "Notice Period" means the thirty (30) days following the date that Executive notifies Black Box in writing of Executive's intent to terminate employment for Good Reason for Termination. |
(d) | All payments under this Agreement are subject to all applicable withholdings. |
4. | Nondisclosure of Information. |
(a) | Executive acknowledges that Black Box has invested and will continue to invest considerable resources in the research, development and advancement of Black Box's business, which investment has or may result in the generation of proprietary, confidential and/or trade secret data, information, techniques and |
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materials, tangible and intangible, which properly belong to Black Box or in which Black Box has an interest. Executive acknowledges and agrees that it would be unlawful for Executive to appropriate, to attempt to appropriate, or to disclose to anyone or use for a third party's benefit such data, information, techniques or materials, subject to the following:
(i) | Executive acknowledges that the following constitute protectable confidential, trade secret or otherwise proprietary information of Black Box or of a third party: all computer software and firmware and computer aided mechanisms related to the foregoing, files, programs, data or information received by Black Box from a customer or prospective customer of Black Box if such is confidential or proprietary to the customer, data base management systems or other instrumentations, any proposals for development, any reports on findings of tests, investigative studies, consultations or the like, pricing policies, budgets, customer lists, strategic plans (whether or not communicated in writing), marketing and sales information, all written documents not generally in the public domain, any and all copies or imitations of the foregoing, and all other confidential, trade secret or proprietary information, whether or not copyrighted or patented and whether created solely by Executive, jointly with others, or solely by others. |
(ii) | For purposes of this Section 4, all confidential, proprietary, or trade secret information enumerated or mentioned in Section 4(a)(i) is hereinafter referred to as "Information". Any restrictions on disclosure and use of the Information will apply to all copies of the Information, whether in whole or in part. |
(iii) | During the term of this Agreement and at all times after termination of this Agreement, unless authorized in writing by Black Box, the Executive will not: |
(1) | use for the Executive's benefit or advantage the Information, or |
(2) | use the Information for the benefit or advantage of any third party, or |
(3) | disclose or cause to be disclosed the Information or authorize or permit such disclosure of the Information to any unauthorized third party, or |
(4) | use the Information in any manner which is intended to injure or cause loss, whether directly or indirectly, to Black Box. |
(iv) | The Executive will not be liable for the disclosure of Information which: |
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(1) | is in the public domain generally and as such becomes known to Executive through no wrongful act or breach of this Agreement; or |
(2) | is received rightfully by Executive from a third party having a lawful right to possess and to release the Information, provided the Executive agrees to promptly notify Black Box if the Executive suspects that the information possessed by the third party is within the meaning of Information under this Agreement. |
(v) | In any judicial proceeding, it will be presumed that the Information constitutes protectable trade secrets, and the Executive will bear the burden of proving that any Information is publicly or rightfully known by the Executive. |
(vi) | The Executive will surrender to Black Box at any time upon request, and upon termination of the Executive's employment with Black Box for any reason, all written or otherwise tangible documentation representing or embodying the Information, in whatever form, whether or not copyrighted, patented, or protected as a mask work, and any copies or imitations of the Information, whether or not made by the Executive. |
(vii) | The Executive agrees to be available upon request for consultation after termination of employment to provide information and details with respect to any work or activity performed or materials created by the Executive alone or with others during the Executive's employment by Black Box. The Executive will be reimbursed for these services. |
(b) | Any and all creations, developments, discoveries, inventions, works of authorship, enhancements, modifications and improvements, including without limitation computer programs, data bases, data files and the like, (hereinafter collectively referred to as "Development" or "Developments"), whether or not the Developments are copyrightable, patentable, protectable as mask works or otherwise protectable (such as by contract or implied duty), and whether published or unpublished, conceived, invented, developed, created or produced by the Executive alone or with others during the term of the Executive's employment, whether or not during working hours and whether on Black Box's premises or elsewhere, will be the sole and exclusive property of Black Box if the Development is: |
(i) | connected with Black Box in any way, or |
(ii) | within the scope of the Executive's duties assigned or implied in accordance with the Executive's position, or |
(iii) | a product, service, or other item which would be in competition with the products or services offered by Black Box or which is related to Black |
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Box's products or services, whether presently existing, under development, or under active consideration, or
(iv) | in whole or in part, the result of the Executive's use of Black Box's resources, including without limitation personnel, computers, data bases, communications facilities, word processing systems, programs, office facilities or otherwise. |
During the term of the Executive's employment with Black Box and, if Black Box should then so request, after termination of such employment, the Executive agrees to assign and does hereby assign to Black Box all rights in the Developments created by the Executive alone or with others during the term of the Executive's employment, and all rights in any trademarks, copyrights, patents, trade secrets and analogous intellectual property rights and any applications for registration for same, of the United States and such foreign countries as Black Box may designate which are related to the Developments, including without limitation all accompanying goodwill and the right to sue for infringement or misappropriation and to receive all proceeds related to any judgment or settlement of same. The Executive agrees to execute and deliver to Black Box any instruments Black Box deems necessary to vest in Black Box sole title to and all exclusive rights in the Developments created by the Executive alone or with others during the term of the Executive's employment, and in all related trademarks, copyrights, mask work protection rights, and/or patent rights so created during the term of employment. The Executive agrees to execute and deliver to Black Box all proper papers for use in applying for, obtaining, maintaining, amending and enforcing all such trademarks, copyrights, patents or such other legal protections as Black Box may desire. The Executive further agrees to assist fully Black Box or its nominees in the preparation and prosecution of any trademark, copyright, mask work protection, patent, or trade secret arbitration or litigation. The Executive shall be reimbursed on a reasonable hourly basis consistent with the compensation provided for herein for the Executive's services rendered following termination of employment.
(c) | The Executive's obligations and covenants in this Section 4 will be binding upon the Executive's heirs, legal representatives, successors and assigns. |
(d) | Black Box and the Executive agree that the rights conveyed by this Agreement are of a unique and special nature. The Executive and Black Box agree that any violation of this Section 4 will result in immediate and irreparable harm to Black Box and that in the event of any actual or threatened breach or violation of any of the provisions of this Section 4, Black Box will be entitled as a matter of right to an injunction or a decree of specific performance without bond from any equity court of competent jurisdiction. The Executive waives the right to assert the defense that such breach or violation can be compensated adequately in damages in an action at law. Nothing in this Agreement will be construed as prohibiting |
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Black Box from pursuing any other remedies at law or in equity available to it for such breach or violation or threatened violation.
5. | Medical Insurance or Similar Benefit Plans. If the Executive's employment should terminate under such circumstance as entitles the Executive to receive payments pursuant to Section 3(b) hereof, then, to the extent permitted by applicable law and the medical insurance and benefits policies to which Executive is entitled to participate, Employer shall maintain Executive's paid coverage for health insurance (through the payment of Executive's COBRA (as defined below) premiums) until the earlier to occur of: (a) Executive attaining the age of 65, (b) the date Executive is provided by another employer benefits substantially comparable to the benefits provided by the above-referenced medical plan (which Executive must provide prompt notice with respect thereto to the Employer) or (c) the expiration of the COBRA Continuation Period (as defined below). During the applicable period of coverage described in the foregoing sentence, Executive shall be entitled to benefits, on substantially the same basis as would have otherwise been provided had Executive not been terminated and Employer will have no obligation to pay any benefits to, or premiums on behalf of Executive after such period ends. To the extent that such benefits are available under the above-referenced medical plan and Executive had such coverage immediately prior to termination of employment, such continuation of benefits for Executive shall also cover Executive's dependents for so long as Executive is receiving benefits under this section. The COBRA Continuation Period for medical insurance under this section shall be deemed to run concurrently with the continuation period federally mandated by COBRA (generally 18 months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to terminated employees under the medical plan. For purposes of this Agreement, (a) "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and (b) "COBRA Continuation Period" shall mean the continuation period for medical insurance to be provided under the terms of this Agreement which shall commence on the first day of the calendar month following the month in which the date of termination falls and generally shall continue for an 18 month period. |
6. | Other Employment. In the event of a termination of employment under the circumstances above described in Section 3(b) hereof, the Executive shall have no duty to seek any other employment after termination of the Executive's employment with Black Box and Black Box hereby waives and agrees not to raise or use any defense based on the position that the Executive had a duty to mitigate or reduce the amounts due the Executive hereunder by seeking other employment whether suitable or unsuitable and should the Executive obtain other employment, then the only effect of such on the obligations of Black Box hereunder shall be that Black Box shall be entitled to credit against any payments which would otherwise be made pursuant to Sections 5(a) or 5(b) hereof, any comparable payments to which the Executive is entitled under the employee benefit plans maintained by the Executive's other employer or employers in connection with services to such employer or employers after termination of the Executive's employment with Black Box. |
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7. | Stock Awards and Options. If the Executive's employment should terminate under the circumstances described in Section 3(a) hereof, the Executive's rights, if any, with respect to any outstanding Stock Awards and/or Options shall be governed by the plans and any related agreements pursuant to which such Stock Awards and/or Options were granted. If the Executive's employment should terminate under such circumstances as entitle the Executive to receive payments pursuant to Section 3(b) hereof, then, with respect to each outstanding Option or Stock Award which did not immediately vest and/or become exercisable upon the occurrence of a Change-in-Control, such Stock Award or Option shall remain outstanding in accordance with its terms provided that in any event it shall automatically vest upon termination of employment and/or become and remain exercisable at any time after termination of employment until the stated expiration date contained in the grant for such Stock Award or Option, provided that the expiration date of any such Option or Stock Award may not exceed ten years from the date of grant. |
8. | Restrictive Covenants. |
(a) | Non-Compete. |
(i) | During the period of Executive’s employment by Black Box and for six (6) months after the termination of Executive’s employment from Black Box, except for Job Elimination but including a Cause for Termination, Executive will not, for himself, as an agent, consultant, employee or otherwise, or on behalf of any person, association, partnership, corporation or other entity, directly or indirectly, own, manage, operate, control, invest in, be employed or retained by, participate in or with or be connected in any manner with any Competitive Business in a Restricted Territory and perform a Restricted Activity, as hereinafter defined. |
(ii) | A "Competitive Business" means any person, business, entity or venture engaged in designing, selling, implementing, installing and/or maintaining, in whole or in part, communication systems including, but not limited to, the sale of products used in connection with such communication systems and/or services related thereto. |
(iii) | "Job Elimination" means a determination by Black Box that Executive’s specific position is no longer required and that Executive employment is not a Cause for Termination. |
(iv) | "Restricted Territory" means any geographic area in which Black Box does business and in which Executive had responsibility for, or Information about, such business within the twenty-four (24) months prior to Executive’s termination of employment from Black Box. |
(v) | "Restricted Activity" means any activity or type of activity for which Executive had actual, assigned or supervisory responsibility for Black Box |
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within the twenty-four (24) months prior to Executive’s termination of employment from Black Box or about which Executive had Information.
(b) | Non-solicitation of Black Box Customers or Suppliers. |
(i) | During the period of my employment by Black Box and for two (2) years after the termination of Executive’s employment from Black Box, for any reason, Executive will not, for himself, as an agent, consultant, individual or otherwise, or on behalf of any person, association, partnership, corporation or other entity, directly or indirectly, for a Competitive Business solicit or attempt to obtain business from, accept business from, or do business with or service, or indirectly aid or assist anyone else in the solicitation of business or acceptance of business from any Black Box Customer and/or Supplier (as defined below) for the purpose of doing any kind of business that Black Box does. |
(ii) | For purposes of this Agreement, a "Black Box Customer and/or Supplier" means any person or entity that (A) is a current customer of or supplier to Black Box or was a customer of or supplier to Black Box within one (1) year prior to the termination of my employment with Black Box and (B) Executive had contact with, had responsibility for or gained knowledge of within the twenty-four (24) months prior to Executive’s termination of employment from Black Box. |
(c) | Non-solicitation of Black Box’s Employees. |
(i) | During the period of Executive’s employment by Black Box and for two (2) years after the termination of Executive’s employment from Black Box, for any reason, Executive will not, without the advance written consent of Black Box, directly or indirectly, induce or attempt to induce any Black Box Employee to terminate employment; nor will Executive hire or participate in the hiring or interviewing of any Black Box Employee for or on behalf of a Competitive Business; nor will Executive provide names or other information about Black Box's Employees for the purpose of assisting a Competitive Business to hire any such Black Box Employee; nor will Executive provide information to a Black Box Employee about any other Competitive Business for the purpose of assisting that Black Box Employee in finding and/or securing employment with such entity. |
(ii) | For purposes of this Agreement, a Black Box Employee means any person who is a current Black Box employee at the time of Executive’s termination of employment from Black Box or was employed by Black Box within one (1) year prior to Executive’s termination of employment from Black Box. |
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9. | Terms. This Agreement shall be for an initial term of five years commencing on the date hereof. This Agreement shall automatically renew for an additional term of one year commencing on the fifth anniversary of the date hereof and for succeeding additional terms each of one year on each succeeding anniversary thereof until and unless either party sends written notice of non-renewal to the other party at least six months prior to a renewal date; provided, however, that if a Change-in-Control shall occur during the initial or renewed term of this Agreement, then this Agreement shall remain in effect until the second anniversary of the date of the Change-in-Control. |
10. | Miscellaneous. |
(a) | This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. |
(b) | This Agreement replaces only the previous oral agreements, but is in addition to all previous written agreements, relevant to the topics covered herein, if any, between Black Box and Executive. If a previous written agreement exists, this Agreement will control in the event of any conflict with the provisions of this Agreement. |
(c) | Black Box will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of Black Box, by agreement in form and substance satisfactory to the Executive, to expressly assume and agree to perform this Agreement in the same manner required of Black Box and to perform it as if no such succession had taken place. Failure of Black Box to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to terminate employment due to Good Reason for Termination. As used in this Agreement, "Corporation" shall mean Black Box as hereinbefore defined and any successor to its business and/or assets as aforesaid which executes and delivers the agreement provided for in this subsection (c) or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law. |
(d) | This Agreement shall inure to the benefit of and be enforceable by the Executive and Black Box and their respective legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive should die while any amounts would still be payable to the Executive hereunder if the Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the Executive's devisee, legatee or other designee or, if there be no such designee, to the Executive's estate. |
(e) | Any notice or other communication provided for in this Agreement shall be in writing and, unless otherwise expressly stated herein, shall be deemed to have been duly given if mailed by United States registered mail, return receipt |
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requested, postage prepaid, addressed in the case of the Executive to the Executive's office at Black Box with a copy to the Executive's residence and in the case of Black Box to its principal executive offices, attention of the Chief Executive Officer.
(f) | 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 approved by resolution of the Board of Directors of Black Box. No waiver by either party hereto at any time of any breach by the other 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, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement. Nothing contained herein shall impair the right of Black Box to terminate the Executive's employment, subject to making any payments required to be made hereunder. |
(g) | The invalidity or unenforceability of any 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. |
(h) | This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. |
(i) | If litigation should be brought to enforce interpret or challenge any provision contained herein, the prevailing party in such litigation, if any, shall be entitled to its reasonable attorney's fees and disbursements and other costs incurred in such litigation and to interest on any money judgment obtained calculated at the prime rate of interest in effect from time to time at Citizen's Bank, N.A. (or its successor), from the date that the payment should have been made under this Agreement. |
(j) | Excise Taxes. |
(i) | For purposes of this subsection 10(j), (1) a Payment shall mean any payment or distribution in the nature of compensation to or for the benefit of the Executive, whether paid or payable pursuant to this Agreement or otherwise; (2) Agreement Payment shall mean a Payment paid or payable pursuant to this Agreement (disregarding this subsection 10(j)); (3) Net After Tax Receipts shall mean the Present Value of a Payment net of all taxes imposed on the Executive with respect thereto under Sections 1 and 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), determined by applying the highest marginal rate under Section 1 of the Code applicable to the Executive's taxable income for such year; |
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(4) "Present Value" shall mean such value determined in accordance with Section 280G(d)(4) of the Code; and (5) "Reduced Amount" shall mean the greatest aggregate amount of Payments, if any, which (x) is less than the sum of all Payments and (y) results in aggregate Net After Tax Receipts which are greater than the Net After Tax Receipts which would result if the aggregate Payments were made.
(ii) | Anything in this Agreement to the contrary notwithstanding, in the event PriceWaterhouseCoopers L.L.P. (or if PriceWaterhouseCoopers L.L.P. is the audit firm for Black Box at the time, another accounting firm of nationally recognized standing selected by Executive) (the "Accounting Firm") shall determine that receipt of all Payments would subject the Executive to tax under Section 4999 of the Code, it shall determine whether some amount of Payments would meet the definition of a "Reduced Amount." If the Accounting Firm determines that there is a Reduced Amount, the aggregate Agreement Payments shall be reduced to such Reduced Amount; provided, however, that if the Reduced Amount exceeds the aggregate Agreement Payments, the aggregate Payments shall, after the reduction of all Agreement Payments, be reduced (but not below zero) in the amount of such excess. All determinations made by the Accounting Firm under this Section shall be binding upon Black Box and the Executive and shall be made within 60 days of the occurrence of an event which requires Black Box to make payments to the Executive under this Agreement. No later than two business days following the making of this determination by the Accounting Firm, Black Box shall pay to or distribute for the benefit of the Executive such Payments as are then due to the Executive under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the future such Payments as become due to the Executive under this Agreement. Black Box or its successor shall pay for the work done by the Accounting Firm. In the event that the Accounting Firm is unable or unwilling to make the determinations to be made under this subsection 10(j) or for any reason such determinations are not made within 60 days of the occurrence of the event which requires Black Box to make payments to the Executive under this Agreement, Black Box shall make all Payments as are then due to the Executive without reduction no later than two business days following the 60th day after the occurrence of the event which required Black Box to make payments to the Executive under this Agreement. |
(iii) | While it is the intention of Black Box and the Executive to reduce the amounts payable or distributable to the Executive hereunder only if the aggregate Net After Tax Receipts to the Executive would thereby be increased, as a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by |
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Black Box to or for the benefit of the Executive pursuant to this Agreement which should not have been so paid or distributed ("Overpayments") or that additional amounts which will not have been paid or distributed by Black Box to or for the benefit of the Executive pursuant to this Agreement could have been so paid or distributed ("Underpayment"), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based either upon the assertion of a deficiency by the Internal Revenue Service against Black Box or the Executive which the Accounting Firm believes has a high probability of success or controlling precedent or other substantial authority, determines that an Overpayment has been made, any such Overpayment paid or distributed by Black Box to or for the benefit of the Executive shall be treated for all purposes as a loan ab initio to the Executive which the Executive shall repay to Black Box together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by the Executive to Black Box if and to the extent such deemed loan and payment would not either reduce the amount on which the Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Finn, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by Black Box to or for the benefit of the Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(k) | The payments to be made under this Agreement are intended to be excepted from coverage under Section 409A ("Section 409A") of the Code and the regulations promulgated thereunder and shall be construed accordingly. If Black Box determines in good faith that any amounts to be paid to Executive under this Agreement are subject to Section 409A, Black Box shall adjust or cause its Affiliate to adjust the form and/or the timing of such payments as determined to be necessary or advisable to be in compliance with Section 409A. If any payment must be delayed to comply with Section 409A, such payment will be paid at the earliest practicable date permitted by Section 409A. Notwithstanding any provision to the contrary, to the extent that any amounts payable hereunder are subject to the requirements of Section 409A and are payable on account of termination of employment, the payment of said amounts will be delayed for a period of six (6) months after the termination date (or, if earlier, the death of the Participant) for any Participant that is a "specified employee" (as defined in Section 409A). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period. Notwithstanding any provision of this Agreement to the contrary, Executive acknowledges and agrees that Black Box and any Affiliate of Black Box shall not be liable for, and nothing provided or contained in this |
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Agreement will be construed to obligate or cause Black Box or any Affiliate of Black Box to be liable for, any tax, interest or penalties imposed on Executive related to or arising with respect to any violation of Section 409A.
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IN WITNESS WHEREOF, this Agreement has been executed on the date(s) set forth below to be effective as of the date first above written.
WITNESS: | BLACK BOX CORPORATION |
/s/ David M. Pasternak By /s/ E.C. Sykes
Name: E.C. Sykes
Title: President & CEO
Date: November 17, 2016
WITNESS:
/s/ David M. Pasternak /s/ Anthony J. Massetti
Anthony J. Massetti
Date: November 17, 2016
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November 16, 2016
Via Email
Timothy C. Huffmyer
320 Haugh Drive
Pittsburgh, PA 15237
Dear Tim:
This letter will confirm our agreement regarding your transition and continued service to Black Box Corporation (the “Company”) as set forth in this letter.
Effective, November 17, 2016, you will become the Vice President, Finance of the Company in lieu of your previous Company titles. With respect to the subsidiaries of the Company, you agree to assist us in transitioning those titles.
We have agreed that you will remain in your new role, with duties and responsibilities as determined by the Chief Financial Officer or Chief Executive Officer, and reasonably consistent with your skillset and experience. We trust that you will continue to perform your duties in a professional manner and will act with the best interests of the Company in mind.
Termination Date. Assuming that you comply with this agreement, you will be employed in this new role until the filing of our Annual Report on Form 10-K (the “Form 10-K”) for the fiscal year ending March 31, 2017 (“Fiscal 2017”) or May 31, 2017, whichever occurs first, but not sooner than May 26, 2017 (the “Termination Date”). From now until your Termination Date (the “Transition Period”), you will continue to receive your current base salary and will continue to participate in the Fiscal 2017 incentive plans (i.e., the Fiscal 2017 Annual Incentive Plan and the Long-Term Incentive Programs for Fiscal 2017, Fiscal 2016 and Fiscal 2015) in accordance with their terms. You will not need to be employed on the payment date in order to receive this bonus, but you will need to execute (and not revoke) the Release to receive it. You will not receive any additional incentive grants.
Unless you are terminated “For Cause” (as defined below) prior to the Termination Date, upon your termination and execution, delivery and non-revocation of an Agreement and General Release (the “Release”), a draft of which is attached hereto, on or within twenty-one (21) days following the Termination Date (please do not execute or deliver the Release prior to the Termination Date), we will provide you with (i) a lump sum severance payment of three hundred thirty-six thousand six hundred dollars ($336,600.00), less applicable withholdings, and (ii) a bonus payment of two hundred fifty thousand dollars ($250,000), less applicable withholdings, assuming successful completion of the audit for Fiscal 2017. Successful completion of the audit means that the Form 10-K is filed timely and that the audit report contained therein is without qualification. Each such payment shall be made promptly following the date the Release becomes binding and non-revocable by you, but in no event shall any such payment, if due, be made later than the sixtieth (60th) day following your Termination Date.
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
Mr. Huffmyer
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Early Departure Date Option. In order to provide flexibility, we are agreeable to providing you with this alternative agreement should you elect for an earlier termination date. At your election, subject to our approval which will not be unreasonably withheld, if you remain employed at least until the filing of our Quarterly Report on Form 10-Q (the “Form 10-Q”) for the fiscal quarter ending December 31, 2016 (“3Q17”) or February 28, 2017, whichever occurs first, and you provide us with not less than thirty (30) days’ written notice of your desired termination date (the “Early Departure Date”), you will continue to receive your current base salary and will continue to participate in the Fiscal 2017 incentive plans (i.e., the Fiscal 2017 Annual Incentive Plan and the Long-Term Incentive Programs for Fiscal 2017, Fiscal 2016 and Fiscal 2015) in accordance with their terms until the Early Departure Date. For avoidance of doubt, under this Early Departure Date scenario, all of your previous unvested equity awards will be forfeited as of the Early Departure Date and you will not enjoy the benefit of any additional vesting or payments under these incentive plans beyond the Early Departure Date, although you will remain eligible for any bonus under the Fiscal 2017 Annual Incentive Plan with respect to the performance results for 3Q17, in accordance with the terms of that plan. You will not need to be employed on the payment date in order to receive this bonus, but you will need to execute (and not revoke) the Release to receive it. You will not receive any additional incentive grants.
Unless you are terminated “For Cause” prior to the Early Departure Date, upon your termination and execution, delivery and non-revocation of the Agreement and General Release (the “Release”) attached hereto on or within twenty-one (21) days following the Early Departure Date (please do not execute or deliver the Release prior to the Early Departure Date), we will provide you with a lump sum severance payment of three hundred thirty-six thousand six hundred dollars ($336,600), less applicable withholdings, promptly following the date the Release becomes binding and non-revocable by you, but in no event shall any such payment, if due, be made later than the sixtieth (60th) day following your Early Departure Date.
For purposes of this agreement, “For Cause” means any of the following: (i) unless instructed otherwise, the deliberate and intentional failure by you to devote substantially your entire business time and best efforts to the performance of your duties (other than any such failure resulting from your incapacity due to disability); or (ii) gross misconduct materially and demonstrably injurious to the Company and its subsidiaries, taken as a whole (collectively, “Black Box”); or (iii) your conviction of, or the entry of a plea of guilty or Nolo Contendre by you to, a crime involving an act of fraud or embezzlement against the Company or any of its subsidiaries, or your conviction of, or the entry of a plea of Nolo Contendre by you to, any felony involving moral turpitude; or (iv) your deliberate and intentional breach of any non-solicitation or confidentiality agreement entered into by you; or (v) your deliberate and intentional breach of any non-compete agreement which continues for ten (10) days after receiving written notice thereof from Black Box; or (vi) your willful failure to comply with good faith instructions of the Board of Directors. For purposes of this definition, no act, or failure to act, on your part shall be considered “deliberate and intentional” or to constitute intentional or gross misconduct unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interests of Black Box.
As for the non-competition, non-solicitation and/or confidentiality agreements you entered into, including, but not limited to, the Black Box Corporation Non-Compete and Non-Solicit Agreements you signed in connection with incentive awards granted to you, they shall remain in full force and effect in
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
Mr. Huffmyer
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accordance with their terms, both during the Transition Period and following the Termination Date (or, if applicable, following the Early Departure Date). However, should you execute the Release and should you comply with the other terms of those agreements, such as the confidentiality provisions and the non-solicitation of Black Box clients and team members provisions, the Company is willing to limit your Non-Compete obligations to twelve (12) months. Should you violate any of those provisions, the Non-Compete restrictions would be for two (2) years as per the terms of the Release.
For purposes of any outstanding stock option agreements, your termination will be treated as a termination by the Company without cause.
The Company will pay you through the Termination Date or Early Departure Date, as the case may be, in accordance with normal payroll dates and practices and as required by applicable law. Any bonus payment you earn in accordance with this agreement will be paid to you when paid to other employees.
You will continue to be subject to the trading window limitations of Black Box Corporation’s policy for Purchase and Sale of Company Securities until the Termination Date (or, if applicable, following the Early Departure Date). If your Termination Date (or, if applicable, following the Early Departure Date) occurs during a “closed window” period, you would be prohibited from trading in our stock until the next trading window opens. Thereafter, you would no longer be subject to any trading window limitations under our policy but, in accordance with our policy and the law, you may not engage in transactions regarding Company stock while in the possession of material, non-public information.
I want to thank you for the professionalism and dedication to the Company that you have displayed throughout our discussions on this topic.
If you have questions regarding this offer, please contact me. If you have any questions regarding your benefits, please contact Dave Pasternak.
Sincerely,
/s/ E.C. Sykes
E. C. Sykes
President and Chief Executive Officer
Enclosure: Agreement and General Release
Acknowledged and Agreed to:
By: /s/ Timothy C. Huffmyer November 16, 2016
Timothy C. Huffmyer Date
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered into by and among Black Box Corporation, and its direct and indirect subsidiaries and affiliates, including but not limited to, Black Box Corporation of Pennsylvania d/b/a Black Box Network Services (hereinafter “Employer” or “Black Box”) and Timothy C. Huffmyer, his heirs, executors, administrators, successors, and assigns (collectively referred to throughout this Agreement as “Employee”).
NOW, for good and valuable consideration, the parties agree to and intend to be legally bound by the following:
1.Last Day of Employment. Employee's last day of employment with Employer was ____________ (the “Separation Date”). {To be completed in accordance with Agreement regarding Early Departure Date or Termination Date.}
2. Consideration. In consideration for signing this Agreement and in consideration of Employee's adherence to the promises made herein:
(a) Employer will pay Employee three hundred thirty-six thousand six hundred dollars ($336,600.00), less all ordinary deductions required by law (“Severance”). The Severance will be payable in a lump sum promptly following the execution of this Agreement and the expiration of the revocation period set forth in Paragraph 4 (the “Effective Date”), but in no event shall this payment be made, if due, later than the sixtieth (60th) day following Employee’s Separation Date.
(b) If otherwise earned and paid by the Employer to active exempt employees for the 2017 fiscal year, a bonus in the amount Employee would have earned and received had Employee remained an employee when the bonus was eligible to be earned and due to be paid (the “AIP Bonus”). The AIP Bonus, less applicable taxes, withholdings and deductions, will be paid in calendar year 2017 when and if the corporate bonus is paid to other employees, but no earlier than the Effective Date; and
{Replace with below if Early Departure Date and Q3 bonus not yet paid}
If otherwise earned and paid by the Employer to active exempt employees for the third quarter of 2017 fiscal year, a bonus in the amount Employee would have earned and received had Employee remained an employee when the bonus was eligible to be earned and due to be paid (the “Severance Bonus”). The Severance Bonus, less applicable taxes, withholdings and deductions, will be paid in calendar year 2017 when and if the corporate bonus is paid to other employees, but no earlier than the Effective Date; and
(c) Employer will pay Employee two hundred fifty thousand dollars ($250,000.00), less all ordinary deductions required by law (“Severance Bonus”). The Severance Bonus will be payable in a lump sum promptly following the execution of this
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
Agreement and the expiration of the revocation period set forth in Paragraph 4 (the “Effective Date”) but in no event shall this payment be made, if due, later than the sixtieth (60th) day following Employee’s Separation Date. {Delete if Early Departure Date}
(d) Except as otherwise provided herein, Employee agrees that neither Employee nor anyone acting on Employee’s behalf will make any claims against Employer for attorneys' fees, costs, interest or any other expenses which may have been incurred.
3. No Consideration Absent Execution of this Agreement. Employee understands and agrees that Employee would not receive the consideration specified in Paragraph “2” above, except for Employee's execution of this Agreement and the fulfillment of the promises contained herein.
4. Revocation. Employee may revoke this Agreement for a period of seven (7) calendar days following the day Employee executes this Agreement. If Employee chooses to revoke this Agreement, the written notice of revocation should be delivered in person no later than the 7th day and mailed to: General Counsel, Black Box Corporation, 1000 Park Drive, Lawrence, PA 15055.
5. General Release.
(a) In consideration of the severance payment discussed in Paragraph 2 of this Agreement, which Employee warrants to be good and valuable consideration for the releases and covenants provided herein, Employee, on behalf of Employee and Employee’s heirs, assigns, and personal representatives, does hereby release and forever discharge Employer, its parent, their affiliates, subsidiaries, divisions, predecessor companies, their successors and assigns, their affiliated and predecessor companies, including but not limited to Black Box (as defined above) and all of their current and former employees, owners, attorneys, shareholders, members, officers, directors and agents and the current and former trustees or administrators of any pension or other benefit plan applicable to the employees or former employees of any of the aforementioned (collectively referred to throughout the remainder of this Agreement as “Releasees” or the “Released Parties”, and individually, a “Released Party”) from and against all claims, demands, rights, liabilities, causes of action, and grievances, whether statutory or at common law, whether known or unknown, whether accrued or unaccrued, (collectively, the “claims”, and individually, a “claim”) arising out of, or relating in any way to, any acts or omissions done or occurring, in whole or in part, prior to and including the date Employee signed this Agreement, including, but not limited to, all such claims arising out of, or related in any way to, Employee’s employment or termination of employment with Employer. THIS IS A GENERAL RELEASE.
(b) Employee expressly acknowledges and agrees that, to the maximum extent permitted by law, this General Release includes, but is not limited to, Employee’s release of (i) any claims under Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, 42
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
U.S.C. § 1981, the Equal Pay Act of 1963, the Workers Adjustment and Retraining Notification Act, the National Labor Relations Act, and the Employee Retirement Security Act of 1974, the Family and Medical Leave Act of 1993 (“FMLA”) and the Age Discrimination in Employment Act of 1967 (“ADEA”), including all amendments to any of the aforementioned laws, (ii) any claims related to employee handbooks, personnel policies, and employment-related documents, (iii) any other federal, state, or local laws, decisions, rules, statutes, and regulations pertaining to employment, wrongful dismissal, employment termination, retaliation, harassment, express or implied contract, covenant of good faith and fair dealing, intentional or negligent infliction of emotional distress, and defamation, and (iv) any other claim in common law, contract, or tort. This General Release also includes claims arising because of continued effects of any acts or omissions that occurred on or before the date Employee signed this Agreement.
(c) By signing this Agreement, Employee expressly acknowledges and agrees that, as of the date Employee signed this Agreement, Employee (i) has no reason to believe that Employee has suffered any injuries or occupational diseases arising out of or in connection with Employee’s employment with Employer, other than any such injuries or occupational diseases previously reported to Employer in writing; (ii) has received all wages, benefits, and other remuneration to which Employee was entitled to as an employee of Employer; (iii) has received all leave to which Employee was entitled under the FMLA and any comparable state or local laws; and (iv) is not aware of any facts or circumstances constituting a violation of the FMLA, the Fair Labor Standards Act (“FLSA”), the Pennsylvania Wage Payment and Collection Law, or any comparable federal, state, or local laws.
(d) Notwithstanding the foregoing, Employee is not precluded from seeking to enforce any payment obligations or other entitlements specifically provided for under this Agreement, or filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) or a parallel state or local agency or participating in an investigation conducted by the EEOC or a parallel state or local agency, to the maximum extent permitted by law; however, Employee expressly waives Employee’s right to any monetary recovery or any other individual relief in connection with (i) any charge filed with the EEOC or a parallel state or local agency arising out of or related to Employee’s employment and/or the severing of that employment with Employer, or (ii) any claim pursued on Employee’s behalf by any federal, state, or local administrative agency or any other person arising out of or related to Employee’s employment and/or the severing of that employment with Employer. Employee expressly acknowledges and agrees that as of the date that Employee signs this Agreement, Employee has not filed any grievances, claims, complaints, administrative charges, or lawsuits against any of the Released Parties.
6. Affirmations. Employee represents and agrees by signing below that Employee has not been denied any leave or benefit requested, has received the appropriate pay for all hours worked for Employer and has no known workplace injuries or occupational diseases. Employee affirms that Employee has not filed, nor has Employee caused to be filed, nor is Employee presently a party to any claim, complaint, or action against Releasees in any forum or form.
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
Other than the consideration set forth in Paragraph 2, Employee further affirms that Employee has been paid and/or has received all leave (paid or unpaid), compensation, wages, bonuses and/or commissions to which Employee may be entitled and that no other leave (paid or unpaid), compensation, wages, bonuses and/or commissions are due to or eligible to be earned by Employee, except as provided in this Agreement.
7. Confidentiality of Agreement. Employee agrees not to disclose any information regarding the existence or substance of this Agreement, except to Employee's spouse, tax advisor, and an attorney with whom Employee chooses to consult regarding Employee's consideration of this Agreement except as compelled to do so by process of law.
8. Governing Law and Interpretation. This Agreement shall be governed by and subject to the laws and exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania. In the event that Employee breaches any of the provisions of this Agreement, Employee agrees to pay Black Box’s reasonable costs of prosecuting such claims, including attorneys' fees and costs.
9. Return of Employer Property. Employee agrees to return immediately any and all of Employer's property currently in Employee's possession. Employee acknowledges and agrees that any and all developments, works of authorship, inventions and other works embodying intellectual property rights (“Works”) created by Employee, either alone or with others, during the scope of Employee's employment with Employer are owned by Employer. To the extent that a Work is a work of copyright, Employee acknowledges and agrees that the Work is a “work made for hire” under the U.S. Copyright Act. To the extent a Work is not a “work made for hire,” Employee transfers and assigns all right, title and interest in and to the Work to Employer and agrees to execute such documents and take such further actions reasonably requested by Employer (and at Employer's expense without additional compensation to Employee) to perfect in Employer the ownership of such Works.
10. Confidential Information Obligations and Other Agreements.
(a) Employee acknowledges that, during the course of Employee's employment by Black Box, Employee acquired or developed confidential or proprietary information which could include, in whole or in part and without limitation, information concerning Black Box’s business plans, methodologies, know-how, financial information, technical secrets, customer information, pricing information, supplier information and personal information about Company Team Members such as social security numbers and medical condition (collectively referred to herein as “Confidential Information”).
(b) Employee agrees that: (i) the Confidential Information is Black Box’s property; (ii) prior to Employee's employment by Black Box, Employee had no knowledge of the Confidential Information; (iii) the use, misappropriation or disclosure of the Confidential Information to or for a person or entity other than Black Box would constitute a breach of trust and could cause irreparable injury to Black Box; and (iv) it is essential to the protection of Black Box’s competitive position that the Confidential Information be kept secret and that it not be used for Employee's own advantage or the advantage of others; and (v) Employee
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
will not use or disclose such Confidential Information except for the sole benefit of Black Box.
(c) Employee previously signed several Non-Compete and Non-Solicit Agreements (the “Non-Competes”) and may have signed other agreements relating to non-competition, non-solicitation, inventions, and/or confidentiality. Employee reaffirms Employee's continuing obligations under those agreements and further agrees that nothing in this Agreement undermines or alters Employee's obligations under those agreements. Notwithstanding the foregoing, however, the parties agree that the Employee's termination is not a “Job Elimination” as defined in the Non-Competes. The parties also agree that Employee's non-compete restrictions (as per the Non-Competes) are limited to twelve (12) months from the Separation Date unless Employee otherwise breaches the other restrictive covenants, such as the non-solicitation, inventions, and/or confidentiality provisions, of any such agreement. In the case of such a breach, the Employee's non-compete obligations shall be increased to two (2) years from the Separation Date.
(d) Notwithstanding the foregoing, nothing in this Agreement prohibits Employee from reporting possible violations of law or regulation to any government agency or entity or making other disclosures that are protected under the whistleblower provisions of federal, state, or local law or regulation. Employee may provide information to the government, participate in investigations, file a complaint, testify in proceedings regarding Employer’s past or future conduct, engage in any future activities protected under the whistleblower statutes and may receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. Solely in connection with such whistleblowing activities, Employee may disclose Confidential Information, in confidence, to a government official or to an attorney to address possible violations of law; provided, however, any such disclosure of Confidential Information must be in good faith and effectuated in a manner that prevents the dissemination of Confidential Information beyond those persons necessary to make the report or filing, such as filing the Confidential Information under seal and otherwise preventing it from being publicly disclosed. Any permitted disclosure of trade secrets must be made in compliance with 18 U.S.C. §1833, as amended.
11. Severability. If any term, provision or paragraph of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall be limited to the narrowest possible scope in order to preserve the enforceability of the remaining portions of the term, provision or paragraph, and such determination shall not affect the remaining terms, provisions or paragraphs of this Agreement, which shall continue to be given full force and effect.
12. Nonadmission of Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Release shall be deemed or construed at any time for any purpose as an admission by Employer, or evidence of any liability or unlawful conduct of any kind.
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
13. Nondisparagement. The Employee agrees that Employee will not directly or indirectly, make any disparaging statements about the Employer or any Released Party. A disparaging statement is any communication, oral or written, which would cause or tend to cause the recipient of the communication to question the business condition, policies, practices, integrity, competence, fairness or good character of the person or entity to whom the communication relates.
14. Amendment. This Agreement may not be modified, altered or changed except in writing and signed by both parties wherein specific reference is made to this Agreement.
15. Entire Agreement. Except for the notice letter Employee signed acknowledging and agreeing to the terms and conditions regarding his termination, no prior or contemporaneous oral or written agreements or representations may be offered to alter the terms of this Agreement which represents the entire agreement of the parties with respect to the subject matter hereof. To the extent Employee has entered into an enforceable agreement with Employer that contains provisions that are not in direct conflict with provisions in this Agreement, the terms of this Agreement shall not supersede, but shall be in addition to, any other such agreement.
16. Signatures. This Agreement may be executed in counterparts, any such copy of which to be deemed an original, but all of which together shall constitute the same instrument. The parties hereto further agree that this Agreement may be delivered via facsimile transmission or via electronic mail (as a PDF file), and that such a signature shall constitute a valid signature. This Agreement may not be executed prior to the Separation Date.
17. 409A. The provisions of this Agreement will be administered, interpreted and construed in a manner intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, the regulations issued thereunder, or any exception thereto (or disregarded to the extent such provision cannot be so administered, interpreted, or construed). Each payment under this Agreement shall be considered a separate and distinct payment. Employee shall have no right to designate the date of any payment under this Agreement. Nothing contained in this Agreement shall constitute any representation or warranty by the Employer regarding compliance with Section 409A. The Employer has no obligation to take any action to prevent the assessment of any tax under Section 409A on any person and neither the Employer, nor its subsidiaries or affiliates, nor any of their employees, officers, directors or other representatives shall have any liability to Employee with respect thereto.
18. Assignment. Employer and Releasees have the right to assign this Agreement, but Employee does not. This Agreement inures to the benefit of the successors and assigns of the Employer, who are intended third party beneficiaries of this Agreement.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT EMPLOYEE RECEIVED THIS AGREEMENT ON OR BEFORE THE SEPARATION DATE. EMPLOYEE HAS BEEN ADVISED THAT EMPLOYEE HAS TWENTY-ONE (21) CALENDAR DAYS FROM THE SEPARATION DATE TO CONSIDER THIS AGREEMENT, AND SEVEN (7) CALENDAR DAYS TO REVOKE AFTER EXECUTION. EMPLOYEE IS HEREBY
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY OF EMPLOYEE'S CHOICE PRIOR TO EXECUTION OF THIS AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE CONSIDERATION SET FORTH IN PARAGRAPH “2” ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL RELEASABLE CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST EMPLOYER.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties hereto knowingly and voluntarily executed this Agreement as of the date(s) set forth below:
Employer: Employee:
By:
Timothy C. Huffmyer
Timothy C. Huffmyer
Name:
Title:
Date: _____________________________ Date: ___________________________
1000 Park Drive, Lawrence, PA 15055-1018 • (724) 746-5500 • FAX (724) 746-0746
Contact: David M. Pasternak
724-873-6788
Vice President of Human Resources
FOR IMMEDIATE RELEASE
Black Box Appoints Anthony J. Massetti as Senior Vice President, Chief Financial Officer and Treasurer
PITTSBURGH, PENNSYLVANIA, November 17, 2016 -- Black Box Corporation (NASDAQ: BBOX), a leading digital solutions provider, announced today that Anthony J. Massetti has joined the Company as its Senior Vice President, Chief Financial Officer and Treasurer.
Mr. Massetti brings a wealth of financial acumen and experience building world class finance organizations that will assist Black Box in positioning itself as the leading Trusted Digital Partner. He was previously the Senior Vice President and Chief Financial Officer for Avaya. At Avaya, he was an integral part of the leadership team that transformed the company and improved its business model through expanding margins, driving working capital efficiency and effecting strategic investments. He also integrated multiple acquisitions and brings strong capital markets experience. Prior to joining Avaya, he was the SVP and Chief Financial Officer of NCR Corporation. At NCR, he had operational as well as financial responsibilities. Prior to joining NCR, Mr. Massetti was CFO for QLogic Corporation and served as Vice President, Finance for SanDisk Corporation. He started his career with IBM Corporation and steadily progressed through numerous finance leadership roles of increasing responsibility. Mr. Massetti holds a B.B.A. in business administration from Pace University.
E.C. Sykes, President and CEO, stated, “We are looking forward to benefiting from Anthony’s deep financial, transactional and operational experience as a seasoned public company CFO as we look to execute our Transformation Roadmap to Stabilize, Optimize, Expand and Transform our business. Anthony’s depth and breadth will accelerate our path to improving our financial performance.”
Timothy C. Huffmyer will remain with the Company as Vice President, Finance, and will assist with the transition.
“Tim Huffmyer has been a great asset to our company, providing solid management of our Finance teams around the world and leadership on our transformational initiatives. He recently led the team that delivered our new senior credit facility that is enabling us to reset our business model and positions us for future growth. He brings a positive, hard-working attitude every day, and we acknowledge all that he has done for Black Box over the past 13 years,” continued Mr. Sykes. “I am pleased that he will remain with us.”
About Black Box
Black Box is a leading technology solutions provider dedicated to helping customers build, manage, optimize, and secure their IT infrastructure. Black Box delivers high-value products and services through its global presence and more than 3,500 team members. To learn more, visit the Black Box website at http://www.blackbox.com.
Black Box® and the Double Diamond logo are registered trademarks of BB Technologies, Inc.
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