1
AGREEMENT dated as of the
15th day of November, 1999
by and between IMTEC, INC.,
a Delaware corporation (the
"Company"), and XXXXX XXXXX
(the "Employee").
The Employee has requested the Company to assure the Employee of
continued employment in the event of the occurrence of a Change of Control of
the Company (as hereinafter defined) or, alternatively, of reasonable
compensation if, after a Change of Control, (A) the Company shall terminate the
Employee's employment or (B) the Employee elects not to continue his employment
with the Company.
The Company desires to alleviate the Employee's concerns with respect
to the possible consequences of a Change of Control upon the continued
employment of the Employee by the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. If the Employee's employment is terminated by the Company at
any time subsequent to a Change of Control for any reason including
"cause" or if the Employee voluntarily terminates such employment
within one hundred eighty (180) days subsequent to a Change of Control
(the "Evaluation Period"), then (A) in either such event, the Company
shall pay to the Employee within ten (10) days after such termination a
lump sum payment in cash in an amount equal to 1.00 times the
Employee's base amount (as the term base amount is defined in Section
280G of the Internal Revenue Code of 1986, as amended, and applicable
regulations thereunder) at the time of such Change of Control;
provided, however, that at the option of the Employee, exercisable upon
written notice to the Company within ten (10) days of termination of
employment, such payment may be paid in equal monthly installments over
a twelve (12) month period commencing on the first day of the month
immediately following that in which the Employee's employment was
terminated; and (B) the Company shall provide to the Employee a
relocation allowance of $20,000 for relocation of Employee, his family
and his household furnishings to the Denver, Colorado area. For
purposes hereof, in the event the Employee (during or after the
Evaluation Period) shall resign from his employment with the Company
subsequent to any change in his title, nature of duties, employee
benefits, location or place of employment or working conditions, in
each instance without his prior consent, such resignation shall be
deemed to be a termination of employment by the Company.
2. All options, warrants and other rights (collectively, the
"Options") to acquire securities of the Company (including those of its
subsidiaries and affiliates)
2
("Securities"), which shall have been granted to the Employee prior to
a Change of Control shall fully vest and become immediately exercisable
upon the occurrence of any such Change of Control. If subsequent to a
Change of Control, the Employee's employment is terminated by the
Company for any reason including "cause" or if such employment is
voluntarily terminated by the Employee during the Evaluation Period,
then in any such event, all Options shall be exercisable by the
Employee in accordance with their respective terms, as herein above
modified.
3. In lieu of exercising or retaining his right to exercise any
outstanding Options then held by Employee, Employee may elect to
surrender to the Company his rights in such outstanding Options
(whether or not then exercisable) then held by Employee, and, upon such
surrender, the Company shall pay to Employee an amount in cash per
share equal to the aggregate of the difference between (a) the option
prices of the Securities subject to such surrendered Options and the
greater of (b) the average price per share paid in connection with such
acquisition of control if such control was acquired by the payment of
cash or the then fair market value per option share of the
consideration paid for such Securities if such control was acquired for
consideration other than cash, (c) the price per share paid in
connection with any tender offer for Securities leading to control, or
(d) the mean between the high and low bid price of such Securities on
NASDAQ or any other national securities exchange upon which the
Securities shall then be listed on the date of termination of the
Employee's employment.
4. As used herein, a "Change of Control" shall be deemed to have
occurred upon any of:
(A) the passage of (i) ten (10) days following a public
announcement that a person or group of affiliated or associated
persons have acquired, or obtained the right to acquire,
beneficial ownership of twenty (20%) percent or more of the
outstanding Common Stock of the Company ("Shares"); or (ii) ten
(10) days following the commencement of, or announcement of an
intention to make a tender offer or exchange offer, the
consummation of which would result in the beneficial ownership by
a person or group of affiliated or associated persons of twenty
(20%) percent or more of such outstanding Shares; or (iii) ten
(10) days after a person or group of affiliated or associated
persons (x) has become the owner of at least 10% of the Shares or
has filed a Schedule 13D or 13G with the Securities and Exchange
Commission and (y) whose ownership interest is deemed by the
Company's Board of Directors to cause a material adverse impact
on the business or the prospects of the Company.
2
3
(B) individuals who, as of the date of this Agreement (the
"Effective Date"), constitute the Board of Directors of the
Company (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Incumbent Board; provided,
however, that any individual becoming a director subsequent to
the Effective Date whose election or nomination for election by
the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person
other than the Incumbent Board; or
(C) Consummation of a reorganization, merger, consolidation
or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination, (i) all or
substantially all of the individuals and entities who were the
beneficial owners, of the outstanding Common Stock of the Company
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then outstanding
Common Stock of the Company or the combined voting power of the
then outstanding voting securities entitled to vote generally in
the election of directors of the corporation resulting from such
Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the outstanding
Common Stock of the Company, (ii) no person or group of
affiliated or associated persons (excluding any employee benefit
plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of the then outstanding
shares of common stock of the corporation resulting from such
Business Combination except to the extent that such ownership
existed prior to the Business Combination, and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Incumbent Board,
providing for such Business Combination.
3
4
5. The Company shall pay or reimburse the Employee for all
fees and disbursements of counsel, if any, incurred by the
Employee as a result of the termination of his employment by the
Company following a Change of Control or his voluntary
termination of such employment during the Evaluation Period
(including, without limitation, those which may be incurred by
the Employee in seeking to obtain or enforce any right or benefit
provided by this Agreement).
6. Upon the occurrence of a Change in Control, the Employee
will be entitled to receive benefits due him under or contributed
by the Company on his behalf pursuant to any retirement,
incentive, profit sharing, bonus, performance, disability or
other employee benefit plan maintained by the Company on the
Employee's behalf to the extent such benefits are not otherwise
paid to the Employee under a separate provision of this
Employment Agreement.
7. Upon the occurrence of a Change in Control followed by
the Employee's termination of employment, the Company will cause
to be continued, and the Company shall pay for, life, medical,
dental and disability coverage substantially identical to the
coverage maintained by the Company for the Employee prior to the
termination of employment, except to the extent that such
coverage may be changed in its application for all Company
employees on a nondiscriminatory basis. Such coverage and
payments shall cease upon the expiration of eighteen (18) full
calendar months following the date of termination of employment.
8. This Agreement shall inure to and be binding upon the
respective heirs, legatees, successors, assigns and legal
representatives of the parties hereto including, in the case of
the Company, those successors, if any, by reason of merger or by
acquisition of its capital stock or all or substantially all of
its assets.
9. This Agreement may not be modified or amended except in
writing signed by the party or parties against whom enforcement
is sought. The terms of this Agreement may be waived only by a
written instrument signed by the party or parties waiving
compliance. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which
the parties hereto may otherwise have at law or in equity.
10. This Agreement contains the entire understanding of the
parties relating to the subject matter hereof and supersedes all
prior written or oral agreements and understandings relating to
the subject matter hereof.
11. This Agreement will be governed by and construed and
interpreted in accordance with the substantive laws of the State
of Delaware, without giving effect to any conflicts of law rule
or principle that might require the application of the laws
4
5
of another jurisdiction.
12. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement.
13. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, each of
which shall be deemed an original and all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.
IMTEC, INC.
By:/s/ Xxxxx X.Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title:Chairman
/s/ Xxxxx Xxxxx
---------------------------
Xxxxx Xxxxx
5
