EMPLOYMENT AGREEMENT
Science Dynamics Corporation ("Employer") and Xxx X. Xxxxxxx
("Executive"), each intending to be fully and mutually legally bound, agree
to obligate themselves to protect and insure preservation of the Company's
and each others interests and rights, hereinafter agree that as an inducement
to Employee to continue employment with Employer, and in consideration of
such continued employment, the following items and conditions will apply in
the event there is a change in control of Employer as such term is defined
herein:
a. Change in Control or Ownership means:
i. An acquisition by any "person" or "group" (as those terms are
defined or used in Section 13(d) of the Exchange Act as enacted
and in force on the date hereof) of "beneficial ownership"
(within the meaning of Rule 13d-3 under the Exchange Act as
enacted and in force on the date hereof) of securities of the
Employer representing 24.99% or more of the combined voting power
of the Employer's securities then outstanding;
ii. A merger, consolidation or other reorganization of the Employee,
except where the resulting entity is controlled, directly or in
directly, by the Employer;
iii. A merger, consolidation or other reorganization of the Employer,
except where shareholders of the Employer immediately prior to
consummation of any such transaction continue to hold at least a
majority of the voting power of the outstanding voting securities
of the legal entity resulting from or existing after any
transaction and a majority of the members of the Board of
Directors of the legal entity resulting from or existing after a
transaction are former members of the Employer's Board of
Directors;
iv. A sale, exchange, transfer or other disposition of substantially
all of the assets of the Employer to another entity, except to an
entity controlled, directly or indirectly, by the Employer;
v. A sale, exchange, transfer or other disposition of substantially all
of the assets of the Employer to another entity, or a corporate
division involving the Employer; or
vi. A contested proxy solicitation of the Employer's shareholders that
result in the contesting party obtaining the ability to cast 25%
or more of the votes entitled to be cast in an election of
directors of the Employer.
b. If a change in control or ownership shall occur and if thereafter, at any
time, there shall be:
i. Any involuntary termination of the Executive's employment (other
than for Cause or Disability);
ii. Any reduction in the Executive's title, responsibilities,
including reporting responsibilities, or authority, including
title, responsibilities or authority as it may be increased from
time to time;
iii. The assignment to the Executive of duties inconsistent with the
Executive's office immediately prior to a Change in Control or
Ownership or as the same may be increased from time to time after a
change in Control or Ownership;
iv. Any reassignment of the Executive to a location farther than an hour
commute by automobile from Cherry Hill, N.J.;
v. Any reduction in the Executive's annual base salary in effect
immediately prior to a Change in Control or Ownership or as the same
may be increased from time to time after a Change in Control or
Ownership;
vi. Any failure to continue the Executive's participation, on
substantially similar terms, in any of the incentive compensation or
bonus plans of the Employer to an affiliate in which the Executive
participated at the time of the Change in Control or Ownership or any
change or amendment to any of the substantive provisions of any of
such plans which would materially decrease the potential benefits to
the Executive under any of these plans;
vii. Any failure to provide the Executive with benefits at least as
favorable as those enjoyed by the Executive under any pension, life
insurance, medical, health and accident, disability or other
employee plans of the Employer or an affiliate in which the
Executive participated immediately prior to a Change in Control or
Ownership, or the taking of any action that materially reduce any of
such benefits in effect at the time of the Change in Control or
Ownership, unless this reduction relates to a reduction in benefits
applicable to all employees generally;
viii.Any requirement that the Executive travel in performance of his
duties on behalf of the Employer or an affiliate for a substantial
greater period of time than was required of the executive during the
year proceeding the year in which the Change in Control or Ownership
occurred;
ix. Any failure of the Employer's Board of Directors to nominate the
Executive for election as a member of the Employer's Board of
Directors, as the case may be, at the expiration of the Executive's
then existing term;
x. Any sustained pattern of interruption or disruption of the Executive
for matters substantially unrelated to the Executive's performance of
the Executive's duties on behalf of the Employer or an affiliate; or
xi. Any breach of this agreement of any nature whatsoever on the part of
the Employer;
then, at the option of the executive, exercisable by the Executive within one
hundred eighty (180) days of the occurrence of each and every of the forgoing
events, the Executive may resign from employment (or, if involuntarily
terminated, give notice of intention to collect benefits hereunder) by
delivering a notice in writing (the "Notice of Termination") to the Employer,
and the Continuing Compensation and Benefits' provisions of this Agreement
shall apply.
c. Continuing Compensation and Benefits.
i. (a) if, at the time of termination of the Executive's employment
in accordance with Section b hereof, a Tax Change has also
occurred, the Employer shall make a lump-sum cash payment to the
Executive no later than thirty (30) days following the date of
such termination in an amount ("X") determined pursuant to the
following formula: X=(2.99A-B) x (1+C).
For the purpose of the foregoing formula,
A = The Executive's base amount (determined pursuant to Internal
Revenue Code Section 280G(b)(3)(A)) on the date of the
Tax Change
B = The present value of all other amounts which qualify as payments
under Internal Revenue Code Section 280G(b)(2)(A)or(B) (without
regard to the provisions of Code Section 280G(b)(2)(A)(ii)), such
present value to be determined pursuant to the provisions of
Internal Revenue Code Section 280G;
C = 120% times 0.5 times the lowest of the semiannual applicable
federal rates (determined pursuant to Internal Revenue Code
Section 1274(d)) in effect on the date of the Tax Change; and
D = The number of whole semiannual periods plus any fraction of a
semiannual period from the later of the date of the Tax Change or
the Change in Control or Ownership to the date of termination of
the Executive's employment.
Notwithstanding the foregoing or any other provision of this Agreement
to the contrary, if the amount determined in "B" above equals or
exceeds 2.99 times the amount determined under "A" above, no payment
shall be made to the Executive under this Section.
(b) If, at the time of termination of the Executive's employment in
accordance with Section b hereof, a Tax Change has not occurred, the
Employer shall make a lump-sum cash payment to the Executive no later
than thirty (30) days following the date of such termination in an
amount equal to (A) 2.99 times the lesser of (i) the Executive's base
amount determined pursuant to the principles set forth in the
regulations promulgated under Code Section 280G(b)(3)(A) and as though
a Tax Change has occurred on the date of the Executive's termination of
employment and (ii) the Executive's base amount so determined but as
though a Tax Change will occur in the calendar year following the date
of the Executive's termination of employment, minus (B) any other
amounts paid or payable within thirty (30) days following the
Executive's termination of employment which would constitute (or be
presumed to constitute payments under Code Section 280G(b)(2)(A) or (B)
(without regard to the provisions of Code Section 280G(b)(2)(A)(ii)) if
a Tax Change had occurred on the date of such termination of
employment.
ii. The Executive shall not be required to mitigate the amount of any
payment provided for in subsection c(i) by seeking other
employment or otherwise, nor shall the amount of any payment or
benefit provided for in subsection c(i) be reduced by any
compensation earned by the Executive as the result of employment
by another employer or by reason of the Executive's receipt of or
right to receive any retirement or other benefits after the date
of termination of employment or otherwise, except as otherwise
provided therein.
iii. Upon written request of the Executive, the Employer's obligation
to make the payment under this Section shall be secured in total
(i) by a standby letter of credit obtained by the Employer from a
recognized financial institution the long-term obligations of
which are rated, on the date of the request, investment grade or
better by Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc. or(ii) by other security as the Executive shall
approve, obtained within ten (10) days of the Executive's written
request following a Change in Control or Ownership.
iv. The Employer shall pay all reasonable legal fees and related
expenses (including the costs of experts, evidence and counsel
and expenses included in connection with an arbitration or in
other litigation or appeal) incurred by the Executive as a result
of (i)(a) his delivery of a Notice of Termination or (i)(b) his
seeking to obtain or enforce any right or benefit provided by
this Agreement.
d. Termination for Cause. The Employer may terminate the Executive's
Employment for "Cause." For purposes of this Agreement, "Cause" means
the occurrence of either of the following:
i. The Executive's conviction of, or plea of guilty or nolo contendere
to, a felony or a crime of falsehood or involving moral
turpitude; or
ii. The willful failure by the Executive to substantially perform his
duties to the Employer, other than a failure resulting from the
Executive's incapacity as a result of the Executive's Disability,
which willful failure results in demonstrable material injury
and damage to the Employer. Notwithstanding the foregoing, the
Executive's Employment shall not be deemed to have been
terminated for Cause if such termination took place as a result
of:
a. Questionable judgment on the part of the Executive;
b. Any act or omission believed by the Executive in good faith,
to have been in or not opposed to the best interests of the
Employer; or
c. Any act or omission in respect of which a determination could
properly be made that the Executive met the applicable standard
of conduct prescribed for indemnification or reimbursement or
payment of expenses under the Employer's By-laws or the laws of
New Jersey, or the directors and officers' liability insurance
of the Employer or any Employer, in each case as in effect at
the time of such act or omission.
If the Executive's Employment is terminated for Cause, all rights of the
Executive under this Agreement shall cease as of the effective date of such
termination, except that the Executive (i) shall be entitled to receive
accrued Salary through the date of such termination and (ii) shall be
entitled to receive the payments and benefits to which he is then entitled
under the employee benefit plans of the Employer or any affiliate thereof as
of the date of this termination.
Adopted by the Board of Directors on January 25, 1996.
Attest Science Dynamics Corporation
By: /s/Xxx X. Xxxxxxx By: /s/Xxxxxx X. Xxxxx
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Corporate Sec. President
