Exhibit 10.1
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement dated and effective as of September 1,
2000 (this "Agreement") is entered into by and between Omega Protein
Corporation, a Nevada corporation with headquarters in Houston, Texas (the
"Company" or "Omega"), and Xxxxx Xxxxxxx, an individual residing in Xxxxxx
County, Texas (the "Employee"). WHEREAS, the Employee is a key employee whose
services are important to the ongoing operations of the Company and its
consolidated subsidiaries; and WHEREAS, the Company desires to provide the
Employee with certain assurances regarding his employment in the event of a
Change of Control of the Company; THEREFORE, in consideration of the premises
and the mutual agreements and covenants set forth herein, the parties hereby
agree as follows:
1. Definitions. As used herein, the following terms shall have the following
definitions:
"Change of Control" means (1) that point in time in which Xxxxxx X. xxx
Xxxxxxxxx III no longer serves for any reason as the President and Chief
Executive Officer of the Company, or (2) that point in time in which a person,
entity or group (as such terms are defined in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) other than (a) the Company or its subsidiaries,
or (b) Xxxxxx Corporation (which as of the date of this Agreement currently owns
approximately 61% of the Company's outstanding common stock), directly or
indirectly acquires beneficial ownership (as defined in Section 13(d) of the
Securities Exchange Act) of thirty percent (30%) or more of the then outstanding
shares of common stock of the Company as a result of such acquisition (provided,
however, that such Change of Control does not occur solely as a result of a
reduction in the number of shares of Company common stock outstanding due to a
repurchase of Company common stock by the Company or its subsidiaries). For
purposes o f this Agreement, the Change of Control will be deemed to occur on
the effective date on which such person or entity acquires beneficial ownership
of at least one share greater than thirty percent (30%) of the then outstanding.
Xxxxxx Corporation is not an intended third party beneficiary of this Agreement
so that if, for example, Xxxxxx Corporation were to sell all of its shares of
Omega common stock to a third party which, as a result of that transaction, then
owned greater than 30% of the Company's then outstanding common stock, a Change
of Control would have occurred.
"Qualifying Termination" means (i) the termination of the Employee's
employment for any reason other than death, Due Cause or Disability, (ii) a
demotion of the Employee to a lesser position than the position held by the
Employee immediately prior to the Change of Control or a material change in the
Employee's responsibilities that are substantially similar to such a demotion;
(iii) any decrease in the Employee's base salary or removal of his right to
participate in bonus and incentive programs for similarly situated executives;
or (iv) any requirement that the Employee move his permanent resident outside
the Houston, Texas and surrounding suburbs area.
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"Disability" means the inability or incapacity (by reason of a medically
determinable physical or mental impairment) of the Employee to perform the
essential functions of the job then assigned to him hereunder for a period that
can be reasonably expected to last more than 120 days.
"Due Cause" means: (i) the Employee has committed a willful serious act,
such as fraud, embezzlement or theft, against the Company or any of its
subsidiaries, intending to materially enrich himself at the expense of the
Company or that subsidiary; (ii) the Employee has been convicted of or pled
guilty or nolo contendre to a felony; or (iii) the Employee has refused to carry
out his duties in gross dereliction of those duties and, after receiving written
notice to such effect from the Company, has failed to cure the existing problem
within five days.
2. Term. The term of this Agreement shall commence on the date of this Agreement
and shall continue in effect until terminated by mutual written consent of the
Company and the Employee.
3. Change of Control. If, at any time within seven hundred and thirty (730) days
after a Change in Control occurs, the Company terminates the Employee's
employment by a Qualifying Termination, then the Employee may, at his option and
in his sole discretion, tender to the Company a signed and dated Change of
Control Termination Notice specifying the factual basis of the Change of Control
and the basis for Employee's termination. If the Company does not dispute in
writing the factual basis of such Change of Control Termination Notice within
ten (10) days of Company's receipt thereof, then: (i) the Employee's Employment
shall terminate effective as of the fifteenth (15th) day after the date of the
Change of Control Termination Notice; and (ii) for a one-year period thereafter,
the Company shall continue to pay the Employee his base salary in accordance
with the standard payroll policies of the Company and; (iii) all the rights and
benefits the Employee may have under the employee benefit, bonus and/or stock op
tion plans and programs of the Company, if any, will be determined in accordance
with the terms and conditions of those plans and programs.
4. Notices. All notices, requests, demands and other communications given under
or by reason of this Agreement must be in writing and will be deemed given when
delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid, addressed as follows (or to such other address as a
party may specify by notice pursuant to this provision):
(a) If to the Company:
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Omega Protein Corporation
0000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
(b) If to the Employee:
Xxxxx Xxxxxxx
0000 Xxxxx'x Xxxxx Xxxx
Xxxx, Xxxxx 00000
5. Governing Law. This Agreement will be governed by and construed in accordance
with the substantive laws (other than the rules governing conflicts of laws) of
the State of Texas.
6. Additional Instruments. The Employee and the Company will execute and deliver
any and all additional instruments and agreements that may be necessary or
proper to carry out the purposes of this Agreement.
7. Entire Agreement and Amendments. This Agreement contains the entire agreement
of the Employee and the Company relating to the matters contained herein and
supersedes all prior agreements and understandings, oral or written, between the
Employee and the Company with respect to the subject matter hereof. This
Agreement may not be amended or modified except by an agreement in writing
signed by both parties.
8. Headings. The headings of Sections and subsections hereof are included solely
for convenience of reference and will not control the meaning or interpretation
of any of the provisions hereof.
9. Tax Withholding. Notwithstanding any other provision hereof, the Company may
withhold from amounts payable hereunder all federal, state, local and foreign
taxes that are required to be withheld by applicable laws or regulations.
10. Separability. If any provision of this Agreement is rendered or declared
illegal, invalid or unenforceable by reason of any existing or subsequently
enacted legislation or by the final judgment of any court of competent
jurisdiction, the Employee and the Company will promptly meet and negotiate
substitute provisions for those rendered or declared illegal or unenforceable to
preserve the original intent of this Agreement to the extent legally possible,
but all other provisions of this Agreement shall remain in full force and
effect.
11. Assignments. The Company may assign this Agreement to any person or entity
succeeding to all or substantially all the business interests of the Company by
merger or otherwise with the written consent of the Employee. The rights and
obligations of the Employee under this Agreement are personal to him, and none
of those rights, benefits or obligations will be subject to voluntary or
involuntary alienation, assignment or transfer.
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12. Effect of Agreement. Subject to the provisions of Section 11 with respect to
assignments, this Agreement will be binding on the Employee and his heirs,
executors, administrators, legal representatives and assigns and on the Company
and its successors and assigns, except as otherwise contemplated hereby.
13. Execution. This Agreement may be executed in multiple counterparts, each of
which will be deemed an original and all of which will constitute one and the
same agreement.
14. Waiver of Breach. The waiver by either party to this Agreement of a breach
of any provision of the Agreement by the other party will not operate or be
construed as a waiver by the waiving party of any subsequent breach by the other
party.
IN WITNESS WHEREOF, the Employee and the Company have executed this
Agreement effective as of the date first above written.
OMEGA PROTEIN CORPORATION EMPLOYEE
By: /s/ /s/
----------------------------------------- -----------------------------
Xxxxxx X. xxx Xxxxxxxxx III Xxxxx Xxxxxxx
President and Chief Executive Officer
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