EXHIBIT 10.8
XXXXXX XXXX CORPORATION
TERMINATION AND CHANGE IN CONTROL AGREEMENT
This TERMINATION AND CHANGE IN CONTROL AGREEMENT (the "Agreement") is
entered into effective as of the 1st day of June 2004, by and between Xxxxxx
Xxxx Corporation (the "Company") and Xxxxxx X. Xxxxxxxx (the "Executive").
WHEREAS, the Executive is employed by the Company and the Executive has
made valuable contributions to the strategic planning, business operations and
financial strength of the Company; and
WHEREAS, the Company has determined that the Executive and the
availability of his future services are critical to the future success of the
Company; and
WHEREAS, the Company desires to provide fair and reasonable protections to
the Executive on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the continued
employment of the Executive, the Company and the Executive, each intending to be
legally bound hereby, covenant and agree as follows:
1. The Company shall employ the Executive and Executive shall serve as the
Company's Chief Operating Officer with the attendant responsibilities
thereto. The Executive shall receive base compensation in the amount in
effect as of the date of this Agreement, or Executive's most recent per
annum base salary, whichever is greater, and be covered by and receive the
benefits of those plans and programs providing other non-regular cash
compensation and benefits under the terms and conditions in effect as of
the date of this agreement. Nothing in this Agreement shall be deemed to
supersede or otherwise limit the rights of the Executive to any amounts to
which the Executive is entitled under any other agreement, plan, fund or
program covering the Executive.
2. In the event, following a Change in Control, the Company terminates the
Executive's employment for a reason other than "Cause" (as defined herein)
or the Executive quits his employment with the Company for "Good Reason"
(as defined herein), the Executive shall be entitled to receive severance
pay (the "Severance") equal to his regular base salary, or most recent per
annum base salary whichever is greater, for a period of twenty-four (24)
months (the "Payment Period"). Such Severance shall be in addition to any
other compensation or benefits to which the Executive may be entitled
under any other plan, program or payroll practice of the Company.
Severance shall be paid in accordance with the Company's regular payroll
practices as in effect at the time of payment and shall be subject to
regular tax and other withholdings in effect with respect to the
Executive's compensation prior to the Payment Period.
The Company shall continue to provide Executive, during the Payment
Period, with benefits no less favorable than those provided by the Company
to senior executives of the Company during the six-month period prior to
the Change in Control. In addition, the Executive shall be entitled to
receive a payment in an amount equal to two (2) times the average of his
or her last two annual bonus payments earned, and such payment shall be
issued no later than 60 days after Executive's Termination Date (as
defined herein).
The Company, however, shall not be required to provide additional accruals
or contributions under any retirement plan qualified under Section 401(a)
of the Internal Revenue Code.
Severance shall terminate upon the death of Executive during the Payment
Period.
3. Upon a Change in Control, vesting of all unvested options granted to
Executive shall accelerate such that Executive shall be immediately one
hundred percent (100%) vested in all options awarded. Following a Change
in Control, in the event of Executive's termination without cause or
Executive's resignation for "Good Reason," options to purchase shares of
common stock shall remain exercisable for a period of one (1) year from
the date of such termination. The Company shall also pay the Executive any
"Gross-Up Payments" as required under the Executive's employment agreement
with the Company.
4. All Benefits specified above are conditioned upon the Executive refraining
from "Competition" with the Company and its affiliates during the twelve
months after Executive ceases to be employed by the Company. If at any
time
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prior to the end of such twelve-month period, the Company determines that
the Executive is engaging in Competition, the Company shall have the right
to immediately suspend further payments hereunder.
If the Executive engages in Competition at any time during the twelve
month period, the Executive shall return all Benefits paid hereunder, and
the Company shall be entitled to enforce the return of any Benefits
previously paid.
The Executive shall have the right to appeal any benefit suspension or
request for return of benefits to the Board of Directors of the Company
and, if it is determined that the Executive has not engaged in
Competition, payment of all amounts due and unpaid shall be made as soon
as reasonably practicable after such determination.
5. The Benefits under this Agreement shall be unfunded, and the Company's
obligation under this Agreement shall constitute an unsecured promise of
severance pay.
6. This Agreement shall be governed by the laws of Pennsylvania. If under
governing law, any portion of this Agreement is deemed to be invalid, the
invalidity of such portion shall not affect the force, effect and validity
of any remaining portion of this Agreement.
7. For purposes of this Agreement, the following definitions shall apply:
"Cause" means any circumstance in which the Executive has been (i)
convicted of a felony; or any circumstance in which the Company reasonably
concludes that Executive's conduct with regard to the Company constitutes
(ii) fraud or willful misconduct, (iii) a material breach of fiduciary
duty involving personal profit, or (iv) a material and continuing failure
to perform stated duties.
"Change in Control." For the purpose of this Agreement, a "Change in
Control" shall occur if:
(a) any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity, or any syndicate or
group deemed to be a person under Section 14(d)(2) of the Exchange
Act (other than shareholders holding more than 20% of the Company's
voting securities as of the Effective Date), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 of the General Rules
and Regulations under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined
voting power of the company's then outstanding securities entitled
to vote in the election of directors of the Company; or
(b) during any period of two consecutive years (not including any period
prior to the Effective Date of this Plan) individuals who at the
beginning of such period constituted the Board of Directors and any
new directors, whose election by the Board of Directors or
nomination for election by the stockholders of the Company was
approved by a vote of at least three quarters of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination was previously so approved,
cease for any reason to constitute at least a majority thereof; or
(c) all or substantially all of the assets of the Company are liquidated
or distributed.
"Competition" means, for the Payment Period, (i) employment by, being a
consultant to, being an officer or director of, or being connected in any
manner with, any entity or person in the business of the Company or any
affiliate which competes in any market in which the Company does business,
either directly or indirectly, (ii) disclosing, using, transferring or
selling to any such entity any confidential or proprietary information of
the Company or any affiliate, (iii) soliciting, attempting to solicit an
employee or former employee of the Company, (iv) diverting or attempting
to divert any business or customer of the Company or any affiliate, or (v)
refusing to cooperate with the Company or any affiliate by making himself
available to assist the Company or any affiliate in, or testify on behalf
of the Company or any affiliate in any action, suit, or proceeding,
whether civil, criminal or administrative.
"Good Reason" means (i) reduction in the compensation (regular or bonus
compensation formula) of the Executive as in effect as of the date of the
Change in Control, (ii) substantial reduction in the Executive's
responsibilities as in effect as of the date of the Change in Control,
(iii) any failure of the Company to obtain assumption of the obligation to
perform this Agreement by any successor, assignee or distributee of a
majority of the Company's stock or assets (iv) a relocation of the
Executive's location of employment more than 50 miles from the location as
of the date of the Change in Control, or (v) adoption or approval of a
plan of liquidation, dissolution, or reorganization of the Company by the
Board of Directors.
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"Termination Date" means: (i) if the Executive is terminated by the
Company, the date on which the Executive is notified by the Company, (ii)
if the Executive quits, the date on which the Executive notifies the
Company.
8. Executive agrees, as a condition to the receipt of Severance provided for
in this Agreement, that he will execute a release agreement, in a form
satisfactory to the Company, releasing any and all claims arising out of
Executive's employment, except for any claims pursuant to such other
agreements, plans, funds or programs as referenced in Section 1 of this
Agreement.
9. Neither the terms of this Agreement nor the rights and obligations which
it describes shall be assignable by Executive. The Company, however, may
assign this Agreement and the Company's rights and obligations as
described herein, and shall assign this Agreement to any successor which,
by operation of law or otherwise, continues to carry on substantially the
business of the Company.
10. Subject to the rights, benefits and obligations provided for in any other
agreement, plan, program or payroll practice, this Agreement constitutes
the entire agreement between the Company and the Executive regarding this
topic, and no waiver of any provision shall be effective unless in writing
and signed by the Company and the Executive.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first hereinabove set forth.
Xxxxxx Xxxx Corporation Executive
/s/ X. XxXxxxxxxxx Xxxxxx, M.D. /s/ Xxxxxx X. Xxxxxxxx
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Chairman of the Compensation Committee Xxxxxx X. Xxxxxxxx
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