Exhibit 10.17
OFFICER'S SEVERANCE AGREEMENT
This Agreement ("Agreement") is entered into as of April 10, 2000 between
Commonwealth Biotechnologies, Inc., a Virginia corporation (the "Company"), and
Xxxxx X Xxxxxxx (the "Officer").
1. Purpose. The Company considers the establishment and maintenance of a
sound and vital management to be essential to protecting and enhancing the best
interests of Company and its shareholders. In this connection, the Company
recognizes that the possibility of a Change in Control (as defined herein) may
arise and that such possibility, and the uncertainty and questions it may raise
among its officers, may result in the departure or distraction of its officers
to the detriment of the Company and its shareholders. Accordingly, the Company
has determined that appropriate steps should be taken to encourage the continued
attention and dedication of the Company's officers to their assigned duties
without distraction in circumstances arising from the possibility of a Change in
Control of the Company. In particular, the Company believes it important, should
the Company or its shareholders receive a proposal for transfer of control of
the Company, that the Officer be able to assess and advise the Company whether
such proposal would be in the best interests of the Company and its shareholders
and to take such other action regarding such proposal as the Company might
determine to be appropriate, without being influenced by the uncertainties of
the Officer's own situation. The execution of this Agreement is an integral
element of the employment relationship between the Company and the Officer and
the Officer's agreement to remain in the employ of the Company. However, nothing
in this Agreement shall be construed as creating an express or implied contract
of employment and, except as provided in the Employment Agreement (as defined
below) or as otherwise agreed in writing between the Officer and the Company,
the Officer shall not have any right to be retained in the employ of the
Company.
2. Coordination with Employment Agreement.
(a) The Company and the Officer have entered into an Employment
Agreement dated November 21, 1997 (the "Employment Agreement"). Pursuant to such
Employment Agreement, the Company agreed to employ the Officer and the Officer
agreed to be employed by the Company as Controller until the Expiration Date (as
such term is defined in the Employment Agreement).
(b) Notwithstanding the terms of this Agreement, the Employment
Agreement shall continue in full force and effect. To the extent that any
provision of any other agreement between any or any of its subsidiaries or
affiliates and the Officer (including, without limitation, the Employment
Agreement), shall limit, qualify, or be inconsistent with any provision of this
Agreement, then for purposes of this Agreement, while the same shall remain in
force, the provision of such other agreement shall be deemed to have been
superseded, and to be of no force or effect, as if such other agreement had been
formally amended to the extent necessary to accomplish this purpose.
3. Terms of Agreement. This Agreement shall commence on the date hereof
(the "Commencement Date") and shall continue until the fifth anniversary of the
Commencement Date; provided, however, that commencing on the fifth anniversary
of the Commencement Date and on each anniversary of the Commencement Date
thereafter, the term of this Agreement shall automatically be extended for one
year unless at least 30 days prior to such anniversary date, the Company or the
Officer shall have given notice that this Agreement shall not be extended; and
provided further that, notwithstanding the delivery of any such notice, this
Agreement shall continue in effect for a period of 60 months after a Change in
Control of the Company if such Change in Control shall have occurred while this
Agreement is in effect. The Company may not give notice of an election not to
extend before December 31, 2000. Notwithstanding anything in this Section 3 to
the contrary, this Agreement shall terminate if the Officer or the Company
terminates the Officer's employment prior to a Change in Control of the Company.
4. Change in Control. For all purposes of this Agreement, a "Change in
Control" shall mean the occurrence of any of the following events or
circumstances subsequent to the date of this Agreement, it being agreed that no
circumstance or event occurring on or before the date of this Agreement shall
constitute a Change in Control:
(a) The acquisition of Common Stock in the Company, other than from the
Company, by an individual, entity or group (within the meaning of Section
13(d)(3) of 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than a trustee or other fiduciary holding securities
under an employee benefits plan of the Company (a "Person"), who was not a
beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 50% or more of such securities prior to the IPO Date of the
Company, of beneficial ownership of 50% or more of either the then outstanding
shares of Stock of the Company or the combined voting power of the then
outstanding voting securities of the Company into vote generally in the election
of directors (collectively, the "Voting Securities") but excluding for this
purpose, any such acquisition by the Company or its Subsidiaries, or any
employee benefit plan (or related trust) of the Company or its Subsidiaries, or
any corporation with respect to which, following such acquisition, more than 50%
of the then outstanding shares of Voting Securities of such is then beneficially
owned, directly or indirectly, by the individuals and entities who were the
beneficial owners of Voting Securities of the Company immediately prior to such
acquisition in substantially the same proportion as their ownership, immediately
prior to such acquisition, of the then outstanding shares of Voting Securities
of the Company; or
(b) Individuals who, immediately following the closing on the date of
the Company's sale of $3 million principal amount of Convertible Subordinated
Notes, constitute the Board (the "Incumbent Board") cease for any reason, other
than their resignation from the Board or failure to stand for re-election to the
Board, to constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's shareholders, was approved by a vote
of at least two-thirds 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 either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
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promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board; or
(c) There occurs any acquisition, merger or consolidation of the
Company, by, with or into any other corporation (other than a wholly owned
subsidiary of the Company) and individuals who are directors of the Company
immediately prior to the time the agreement of acquisition, merger or
consolidation is executed shall fail to constitute a majority of the Board
Directors of the survivor or successor company at any time after consummation of
the transaction; or
(d) There occurs a sale or disposition by the Company of all or
substantially all of the Company's assets and individuals who are directors of
the Company immediately prior to the time of this agreement of acquisition,
merger or consolidation is executed shall fail to constitute a majority of the
board of directors of the acquiring company at any time after consummation of
the transaction; or
(e) There occurs a change of control of the Company of a nature that
would be required to be reported, in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Act, in a Form 8-K filed under the Act or
in any other filing by the Company with the Securities and Exchange Commission.
(f) Notwithstanding anything in subsections (a)-(f) of this Section 4
to the contrary, no Change in Control shall be deemed to have occurred for
purposes of this Agreement by virtue of any transaction which results in the
Officer, or a group of Persons which includes the Officer, acquiring directly or
indirectly, 25% or more of the combined voting power of the Voting Securities.
5. Termination Following Change in Control. If any of the events
described in Section 4 hereof constituting a Change in Control of the Company
shall have occurred, the Officer shall be entitled to the benefits provided in
Section 6 hereof upon the termination of the Officer's employment with the
Company within sixty (60) months after such Change in Control, unless such
termination is (a) because of death of the Officer, (b) by the Company for Cause
or Disability or (c) by the Officer other than during the Window Period or for
Good Reason (as all such capitalized terms are hereinafter defined).
(a) Disability. Termination by the Company of the Officer's employment
based on "Disability" shall mean termination, because of the Officer's inability
to perform his duties with the Company on a full time basis for 90 consecutive
days or a total of at least 180 days in any calendar year as a result of the
Officer's incapacity due to physical or mental illness (as determined by an
independent physician selected by the Board of Directors of the Company).
(b) Cause. Termination by the Company of the Officer's for "Cause"
shall mean termination for:
(i) gross incompetence, gross negligence, willful misconduct in
office
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or breach material fiduciary duty owed to the Company or any subsidiary or
affiliate thereof;
(ii) conviction of a felony, a crime of moral turpitude or
commission of an act of embezzlement or fraud against the Company or any
subsidiary or affiliate thereof;
(iii) any material breach by the Officer of a material term of
this Agreement, including without limitation material failure to perform a
substantial portion of his duties and responsibilities hereunder; or
(iv) deliberate dishonesty of the Officer with respect to the
Company or any subsidiary or affiliate thereof.
(c) Good Reason. Termination by the Officer of his employment for
"Good Reason" shall mean termination based on:
(i) a determination by the Officer, in his reasonable judgment,
that there has been a material adverse change in the Officer's status or
position(s) as an Officer of the Company as in effect immediately prior to the
Change in Control, including, without limitation, any material adverse change in
his status or position as a result of a diminution in his duties or
responsibilities (other than, if applicable, any such change directly
attributable to the fact that the Company shall cease to be publicly owned) or
the assignment to the Officer of any duties or responsibilities which are
inconsistent with such status or position(s), or any removal of the Officer
from, or any failure to reappoint or reelect the Officer to, such positions(s)
(except in connection with the termination of the Officer's employment for Cause
or Disability or as a result of the Officer's death or by the Officer other than
for Good reason) but excluding any failure to nominate the Officer to the Board;
(ii) a reduction by the Company in the Officer's base salary as
in effect immediately prior to the Change in Control;
(iii) the failure by the Company to continue in effect any Plan
(as hereinafter defined in which the Officer is participating at the time of the
Change in Control of the Company (or Plans providing Officer with at least
substantially similar benefits) other than as result of the normal expiration of
any such Plan in accordance with its terms as in effect at the time of the
Change in Control, or the taking of any action, or the failure to act, by the
Company which would adversely affect the Officer's continued participation in
any of such Plans on a substantially similar basis to the Officer as is the case
on the date of the Change in Control, or which would materially reduce the
Officer's benefits in the future under any of such Plans or deprive the Officer
of any material benefit enjoyed by the Officer at the time of the Change in
Control;
(iv) the failure by the Company to provide and credit the
Officer with the number of paid vacation days to which the Officer is then
entitled in accordance with Company's normal vacation policy as at effect
immediately prior to the Change in Control;
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(v) the Company's requiring the Officer to be based at any
office that is greater than fifty (50) miles from where the Officer's office is
located immediately prior to the Change in Control), except for required travel
on the Company's business to an extent substantially consistent with the
business travel obligations which the Officer undertook on behalf of the Company
prior to the Change in Control;
(vi) the failure by the Company to obtain an agreement
reasonably satisfactory to the Officer from any Successor (as defined in Section
7(a) hereof) to assume and agree to perform this Agreement;
(vii) the failure by the Company to pay to the Officer any
portion of an installment of deferred compensation under any deferred
compensation program of the Company within 15 days of the date the Officer gives
notice of such failure, without prior written consent of the Officer; or
(viii) any unreasonable refusal by the Company to continue to
allow the Officer to attend to matters or engage in activities not directly
related to the business of the Company which, prior to the Change in Control,
the Officer was permitted by Management to attend to or engage in.
(ix) for purposes of this Agreement, "Plan" shall mean any
compensation plan or any employed benefit plan such as a thrift, pension, profit
sharing, medical, disability, accident, life insurance plan or a relocation plan
or policy or any other plan, program or policy of the Company intended to
benefit employees.
(d) Window Period. The term "Window Period" shall mean the 45 day
period immediately following the first anniversary of the date on which a Change
in Control occurred.
(e) Notice of Termination. Any purported termination by the Company
or by the Officer following a Change in Control shall be communicated by a
written Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon.
6. Compensation Upon Termination
(a) If, within 60 months after a Change in Control of the Company has
occurred, the Officer's employment by the Company is terminated other than on
account of the Officer's death and is terminated either (i) by the Company other
than for Cause or Disability or (ii) by the Officer during the Window Period or
for Good Reason, then the Company shall pay to the Officer, no later than the
fifteenth day following the date of termination, without regard to any
provisions of any Plan, the following:
(i) The Officer's base salary through the date of termination
at the rate in effect immediately prior to the time a Notice of Termination is
given, plus any benefits or
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awards (including both the cash and stock components) which pursuant to the
terms of any Plans have been earned or become payable, but which have not yet
been paid to the Officer (including amounts which previously had been deferred
at the Officer's request).
(ii) A lump sum payment in cash in an amount equal to two
times the Officer's base salary at the rate in effect immediately prior to the
time a Notice of Termination is given.
(b) The amount of any payment provided for in this Section 6
shall not be reduced, offset or subject to recovery by the Company by reason of
any compensation earned by the Officer as the result of employment by another
employer after the date of termination, or otherwise.
7. Successors; Binding Agreement
(a) The Company will seek, by written request at least five
business days prior to the time a Person becomes a Successor (as hereinafter
defined, to have such Person, by agreement in form and substance satisfactory to
the Officer, assent to the fulfillment of the Company's obligations under this
Agreement. Failure of such Person to furnish such assent by the later of (i)
three business days prior to the time such Person becomes a Successor or (ii)
ten business days after such person receives a written request to so assent may,
at the election of the Officer, constitute Good Reason for termination by the
Officer of his employment if a Change in Control of the Company occurs or has
occurred, and the failure of the Officer to elect to terminate for Good Reason
upon the expiration of the applicable period shall not constitute a waiver of
his right to do so, which right he shall retain until the commencement of the
Window Period. For purposes of this Agreement, "Successor" shall mean any Person
that succeeds to, or has the practical ability to control (either immediately or
with the passage of time) the Company's business directly, by merger or
consolidation, or indirectly, by purchase of the Company's Voting Securities or
otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Officer's personal legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Officer should die while any amount would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the Officer's
devisee, legatee or other designee or, if no such designee exists, to his
estate.
(c) For purposes of this Agreement, the term "Company" shall
include any subsidiaries and any corporation or other entity which is the
surviving or continuing entity in respect of any merger, consolidation or form
of business combination in which the Company ceases to exist.
8. Fees and Expenses; Mitigation.
(a) The Company shall reimburse the Officer, on a current basis,
for all
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reasonable expenses which he shall incur in connection with the Agreement
following a Change in Control of the Company, including without limitation, all
such fees and related expenses, if any, incurred (i) in contesting or disputing
any termination of the Officer's employment or (ii) the Officer's seeking to
obtain or enforce any right or benefit provided by this Agreement, in each case,
regardless of whether or not the Officer's claim is upheld by a court of
competent jurisdiction; provided, however, the Officer shall be required to
repay any such amounts to the Company to the extent that a court issues a final
and non-appealable order setting forth the determination that the position taken
by the Officer was frivolous or advanced by him in bad faith.
(b) The Officer shall not be required to mitigate the amount of any
payment the Company becomes obligated to make to the Officer in connection with
this Agreement, by seeking other employment or otherwise.
9. Taxes. All payments to be made to the Officer under this Agreement
will be subject to required withholding of federal, state and local income and
employment taxes.
10. Notice. Any notices, requests, demands and other communications
provided for by this Agreement be sufficient if in writing and delivered in
person or sent by registered or certified mail, postage prepaid (in which case
notice shall be deemed to have been given on the third day after mailing), or by
overnight delivery by a reliable overnight courier service (in which case notice
shall be deemed to have been given on the day after delivery to such courier
service) to the Officer at the last address the Officer has filed in writing
with the Employer, or in the case of the Employer, at its main office, attention
of the Board of Directors.
11. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is approved by each
of the Board and the Compensation Committee of the Board and is agreed to in a
writing signed by the Officer and a duly authorized person who is Chairman of
the Board or President or an Executive Vice President of the Company and who is
not the Officer. No waiver by either party hereto at any time of any breach by
the other party hereto of, or of 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 may 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 expressly set forth in this Agreement.
12. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Virginia, without regard to the choice of law provisions of any jurisdiction.
13. Validity. The invalidity, interpretation, construction and performance
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.
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14. Legal Counsel. The Officer has reviewed the contents of this Agreement
and fully understands its terms. The Officer acknowledges that he is fully aware
of his right to the advice of independent counsel and that the Company has
advised him of such right and disclosed to him the risks in not seeking such
independent advice, and that he understands the potentially adverse interest of
the parties with respect to this Agreement. The Officer further acknowledges
that no representations have been made with respect to the income or estate tax
or other consequences of this Agreement to him and that he has been advised of
the importance of seeking independent advice of counsel with respect to such
consequences.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company, by its duly authorized officer, and by the Officer, as of the
date first above written.
COMMONWEALTH BIOTECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: President
Date: 4/10/00
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Address: 8602 Royal Birkdale Dr.
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Xxxxxxxxxxxx, XX 00000
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