Exhibit 10.4
Change-in-Control Severance Agreement
Xxxxxxx Lifesciences Corporation
March 2000
Contents
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Article 1. Definitions 1
Article 2. Severance Benefits 5
Article 3. Form and Timing of Severance Benefits 7
Article 4. Excise Tax 7
Article 5. The Company's Payment Obligation 8
Article 6. Term of Agreement 8
Article 7. Legal Remedies 9
Article 8. Successors 9
Article 9. Miscellaneous 9
Change-in-Control Severance Agreement
Xxxxxxx Lifesciences Corporation
THIS CHANGE-IN-CONTROL SEVERANCE AGREEMENT is made, entered into, as is
effective this _______________day of ____________, 2000 (hereinafter referred to
as the "Effective Date"), by and between Xxxxxxx Lifesciences Corporation (the
"Company"), a Delaware corporation, and _____________________ (the "Executive").
WHEREAS, the Executive is currently employed by the Company in a key
management capacity; and
WHEREAS, the Executive possesses considerable experience and knowledge of the
business and affairs of the Company concerning its policies, methods, personnel,
and operations; and
WHEREAS, the Company is desirous of assuring insofar as possible, that it
will continue to have the benefit of the Executive's services; and the Executive
is desirous of having such assurances; and
WHEREAS, the Company recognizes that circumstances may arise in which a
Change in Control of the Company occurs, through acquisition or otherwise,
thereby causing uncertainty of employment without regard to the Executive's
competence or past contributions. Such uncertainty may result in the loss of the
valuable services of the Executive to the detriment of the Company and its
shareholders; and
WHEREAS, both the Company and the Executive are desirous that any proposal
for a Change in Control will be considered by the Executive objectively and with
reference only to the business interests of the Company and its shareholders;
and
WHEREAS, the Executive will be in a better position to consider the Company's
best interests if the Executive is afforded reasonable security, as provided in
this Agreement, against altered conditions of employment which could result from
any such Change in Control.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements of the parties set forth in this Agreement, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
Article 1. Definitions
Wherever used in this Agreement, the following terms shall have the meanings
set forth below and, when the meaning is intended, the initial letter of the
word is capitalized:
1.1 "Agreement" means this Change-in-Control Severance Agreement.
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1.2 "Base Salary" means, at any time, the then-regular annual rate of pay
which the Executive is receiving as annual salary, excluding amounts: (i)
received under short- or long-term incentive or other bonus plans, regardless of
whether or not the amounts are deferred or (ii) designated by the Company as
payment toward reimbursement of expenses.
1.3 "Board" means the Board of Directors of the Company.
1.4 "Cause" shall be determined solely by the Committee in the exercise of
good faith and reasonable judgment, and shall mean the occurrence of any one or
more of the following:
(i) The Executive's willful and continued failure to substantially
perform his duties with the Company (other than any such failure
resulting from the Executive's Disability) after a written demand
for substantial performance is delivered to the Executive that
specifically identifies the manner in which the Committee
believes that the Executive has not substantially performed his
duties, and the Executive has failed to remedy the situation
within fifteen (15) business days of such written notice from the
Company; or
(ii) The Executive's willfully engaging in conduct that is
demonstrably and materially injurious to the Company, monetarily
or otherwise; or
(iii) The Executive's conviction of a felony.
However, no act or failure to act on the Executive's part shall be deemed
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the action or omission was in the best
interest of the Company.
1.5 "Change in Control" of the Company shall mean the occurrence of any one
of the following events:
(a) Any "Person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (as amended) (other than the
Company, any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company, and any trustee or
other fiduciary holding securities under an employee benefit plan
of the Company or such proportionately owned corporation), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Company representing thirty
percent (30%) or more of the combined voting power of the
Company's then outstanding securities; or
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(b) During any period of not more than twenty-four (24) months,
individuals who at the beginning of such period constitute the
Board of Directors of the Company, and any new director (other
than a director designated by a Person who has entered into an
agreement with the Company to effect a transaction described in
Sections 1.5(a), 1.5(c), or 1.5(d) of this Section 1.5) whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute at least a majority thereof; or
(c) The consummation of a merger or consolidation of the Company with
any other entity, other than: (i) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than sixty percent (60%) of the
combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no Person acquires more than thirty percent
(30%) of the combined voting power of the Company's then
outstanding securities; or
(d) The Company's stockholders approve a plan of complete liquidation
or dissolution of the Company, or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets (or any transaction having a similar effect).
1.6 "Code" means the Internal Revenue Code of 1986, as amended.
1.7 "Committee" means the Compensation Committee of the Board of Directors
of the Company, or, if no Compensation Committee exists, then the full Board of
Directors of the Company, or a committee of Board members, as appointed by the
full Board to administer this Agreement.
1.8 "Company" means Xxxxxxx Lifesciences Corporation, a Delaware corporation
(including any and all subsidiaries), or any successor thereto as provided in
Article 8 herein.
1.9 "Disability" shall have the meaning ascribed to such term in the
Executive's governing long-term disability plan, or if no such plan exists, at
the discretion of the Board.
1.10 "Effective Date" means the date this Agreement is approved by the
Board, or such other date as the Board shall designate in its resolution
approving this Agreement, and as specified in the opening sentence of this
Agreement.
1.11 "Effective Date of Termination" means the date on which a Qualifying
Termination occurs, as provided in Section 2.2 herein, which triggers the
payment of Severance Benefits hereunder.
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1.12 "Good Reason" means, without the Executive's express written consent,
the occurrence after a Change in Control of the Company of any one or more of
the following:
(i) The assignment of the Executive to duties materially inconsistent
with the Executive's authorities, duties, responsibilities, and
status (including offices, titles, and reporting requirements) as
an executive and/or officer of the Company, or a material
reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those
in effect as of ninety (90) calendar days prior to the Change in
Control, other than an insubstantial and inadvertent act that is
remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(ii) The Company's requiring the Executive to be based at a location
in excess of fifty (50) miles from the location of the
Executive's principal job location or office immediately prior to
the Change in Control; except for required travel on the
Company's business to an extent substantially consistent with the
Executive's then present business travel obligations;
(iii) A reduction by the Company of the Executive's Base Salary in
effect on the Effective Date hereof, or as the same shall be
increased from time to time;
(iv) The failure of the Company to continue in effect any of the
Company's short- and long-term incentive compensation plans, or
employee benefit or retirement plans, policies, practices, or
other compensation arrangements in which the Executive
participates unless such failure to continue the plan, policy,
practice, or arrangement pertains to all plan participants
generally; or the failure by the Company to continue the
Executive's participation therein on substantially the same
basis, both in terms of the amount of benefits provided and the
level of the Executive's participation relative to other
participants, as existed immediately prior to the Change in
Control of the Company;
(v) The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to perform
the Company's obligations under this Agreement, as contemplated
in Article 8 herein; and
(vi) The Company, or any successor company, commits a material breach
of any of the material provisions of this Agreement.
The Executive's right to terminate employment for Good Reason shall not be
affected by the Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good Reason herein.
1.13 "Qualifying Termination" means any of the events described in Section
2.2 herein, the occurrence of which triggers the payment of Severance Benefits
hereunder.
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1.14 "Severance Benefits" means the payment of severance compensation as
provided in Section 2.3 herein.
Article 2. Severance Benefits
2.1 Right to Severance Benefits. The Executive shall be entitled to receive
from the Company Severance Benefits as described in Section 2.3 herein, if there
has been a Change in Control of the Company and if, within twenty-four (24)
calendar months thereafter, the Executive's employment with the Company shall
end for any reason specified in Section 2.2 herein as being a Qualifying
Termination.
The Executive shall not be entitled to receive Severance Benefits if he is
terminated for Cause, or if his employment with the Company ends due to death,
Disability, voluntary normal retirement (as defined under the then established
rules of the Company's tax-qualified retirement plan), or due to a voluntary
termination of employment for a reason other than that specified in Section
2.2(b) herein.
2.2 Qualifying Termination. The occurrence of either of the following events
within twenty-four (24) calendar months after a Change in Control of the Company
shall trigger the payment of Severance Benefits to the Executive under this
Agreement:
(a) The Company's involuntary termination of the Executive's employment
without Cause; or
(b) The Executive's voluntary employment termination for Good Reason.
In addition, if the Executive's employment is involuntarily terminated
without Cause by the Company within six (6) months prior to a Change in Control,
such termination shall also be considered a Qualifying Termination occurring
during the twenty-four (24) month period following a Change in Control. For
purposes of this Agreement, a Qualifying Termination shall not include a
termination of employment by reason of death, Disability, or voluntary normal
retirement (as such term is defined under the then established rules of the
Company's tax-qualified retirement plan), the Executive's voluntary termination
for a reason other than that specified in Section 2.2(b) herein, or the
Company's involuntary termination for Cause.
2.3 Description of Severance Benefits. In the event that the Executive
becomes entitled to receive Severance Benefits, as provided in Sections 2.1 and
2.2 herein, the Company shall pay to the Executive and provide him with total
Severance Benefits equal to all of the following:
(a) A lump-sum amount equal to the Executive's unpaid Base Salary,
accrued vacation pay, unreimbursed business expenses, and all other
items earned by and owed to the Executive through and including the
Effective Date of Termination.
(b) A lump-sum amount equal to the Executive's annual target bonus
amount, established under the annual bonus plan in which the
Executive is then participating, for the bonus plan year in which
the Executive's Effective Date of Termination occurs, multiplied by
a fraction the numerator of which is the number of full completed
months in the bonus plan year through the Effective Date of
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Termination, and the denominator of which is twelve (12). This
payment will be in lieu of any other payment to be made to the
Executive under the annual bonus plan in which the Executive is then
participating for that plan year.
(c) A lump-sum amount equal to three (3) multiplied by the higher of the
Executive's annual rate of Base Salary in effect upon the Effective
Date of Termination, or the Executive's highest annual rate of Base
Salary in effect during the twelve (12) months preceding the date of
the Change in Control.
(d) A lump-sum amount equal to three (3) multiplied by the higher of the
Executive's annual target bonus established under the annual bonus
plan in which the Executive is then participating for the bonus plan
year in which the Executive's Effective Date of Termination occurs,
or the actual annual bonus payment made to the Executive under the
annual bonus plan in which the Executive participated in the year
preceding the year in which the Effective Date of Termination
occurs.
(e) All long-term incentive awards shall be subject to the treatment
provided under the Company's Long-Term Stock Incentive Compensation
Program (as amended, or any successor plans thereto) and/or the
applicable award agreements thereunder.
(f) A continuation for thirty-six (36) months of the Executive's medical
insurance and dental insurance coverage. These benefits shall be
provided by the Company to the Executive beginning immediately upon
the Effective Date of Termination. Such benefits shall be provided
to the Executive at the same coverage level (with all premium costs
borne by the Company) as in effect as of the Executive's Effective
Date of Termination for a period of thirty-six (36) months following
the Executive's Effective Date of Termination.
Notwithstanding the above, these medical and dental insurance
benefits shall be discontinued prior to the end of the stated
continuation period in the event the Executive receives
substantially similar benefits from a subsequent employer, as
determined solely by the Committee in good faith. However, if the
benefits received from the subsequent employer do not cover the
preexisting medical conditions of the Executive or a covered member
of the Executive's family, the continuation period shall continue,
but not beyond the thirty-sixth (36th) month following the
Executive's Effective Date of Termination. For purposes of enforcing
this offset provision, the Executive shall be deemed to have a duty
to keep the Company informed as to the terms and conditions of any
subsequent employment and the corresponding benefits earned from
such employment and shall provide, or cause to provide, to the
Company in writing correct, complete, and timely information
concerning the same.
(g) For a period of up to thirty-six (36) months following a Change in
Control, the Executive shall be entitled, at the expense of the
Company, to receive standard outplacement services from a nationally
recognized outplacement firm of the Executive's selection. However,
the Company's total obligation shall not exceed seventy-five
thousand dollars ($75,000.00).
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2.4 Termination due to Disability. Following a Change in Control, if the
Executive's employment is terminated with the Company due to Disability, the
Executive's benefits shall be determined in accordance with the Company's
retirement, insurance, and other applicable plans and programs then in effect.
2.5 Termination due to Retirement or Death. Following a Change in Control,
if the Executive's employment with the Company is terminated by reason of his
voluntary normal retirement (as defined under the then established rules of the
Company's tax-qualified retirement plan), or death, the Executive's benefits
shall be determined in accordance with the Company's retirement, survivor's
benefits, insurance, and other applicable programs then in effect.
2.6 Termination for Cause or by the Executive Other Than for Good Reason.
Following a Change in Control, if the Executive's employment is terminated
either: (i) by the Company for Cause; or (ii) voluntarily by the Executive for a
reason other than that specified in Section 2.2(b) herein, the Company shall pay
the Executive his full Base Salary at the rate then in effect, accrued vacation,
and other items earned by and owed to the Executive through the Effective Date
of Termination, plus all other amounts to which the Executive is entitled under
any compensation plans of the Company at the time such payments are due, and the
Company shall have no further obligations to the Executive under this Agreement.
2.7 Notice of Termination. Any termination of the Executive's employment by
the Company for Cause or by the Executive for Good Reason shall be communicated
by Notice of Termination to the other party. For purposes of this Agreement, a
"Notice of Termination" shall mean a written notice which shall indicate the
specific termination provision in this Agreement relied upon, and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
Article 3. Form and Timing of Severance Benefits
3.1 Form and Timing of Severance Benefits. The Severance Benefits described
in Sections 2.3(a), 2.3(b), 2.3(c), and 2.3(d) herein shall be paid in cash to
the Executive in a single lump sum as soon as practicable following the
Effective Date of Termination, but in no event beyond ten (10) calendar days
from such date.
3.2 Withholding of Taxes. The Company shall withhold from any amounts
payable under this Agreement all federal, state, city, or other taxes as legally
shall be required.
Article 4. Excise Tax
4.1 Excise Tax Payment. If any portion of the Severance Benefits or any
other payment under this Agreement, or under any other agreement with, or plan
of the Company (in the aggregate, "Total Payments") would constitute an "excess
parachute payment," such that a golden parachute excise tax is due, the Company
shall provide to the Executive, in cash, an additional payment in an amount
sufficient to cover the full cost of any excise tax and all of the Executive's
additional state and federal income, excise, and employment taxes that arise on
this additional payment (cumulatively, the "Full Gross-Up Payment"), such that
the Executive is in the same after-tax position as if he had not been subject to
the excise tax. For this purpose, the Executive shall be deemed to be in the
highest marginal rate of federal and state taxes. This payment shall be made as
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soon as possible following the date of the Executive's Qualifying Termination,
but in no event later than ten (10) calendar days from such date.
For purposes of this Agreement, the term "excess parachute payment" shall
have the meaning assigned to such term in Section 280G of the Internal Revenue
Code, as amended (the "Code"), and the term "excise tax" shall mean the tax
imposed on such excess parachute payment pursuant to Sections 280G and 4999 of
the Code.
4.2 Subsequent Recalculation. In the event the Internal Revenue Service
subsequently adjusts the excise tax computation herein described, the Company
shall reimburse the Executive for the full amount necessary to make the
Executive whole on an after-tax basis (less any amounts received by the
Executive that the Executive would not have received had the computations
initially been computed as subsequently adjusted), including the value of any
underpaid excise tax, and any related interest and/or penalties due to the
Internal Revenue Service.
Article 5. The Company's Payment Obligation
5.1 Payment Obligations Absolute. The Company's obligation to make the
payments and the arrangements provided for herein shall be absolute and
unconditional, and shall not be affected by any circumstances including, without
limitation, any offset, counterclaim, recoupment, defense, or other right which
the Company may have against the Executive or anyone else. All amounts payable
by the Company hereunder shall be paid without notice or demand. Each and every
payment made hereunder by the Company shall be final, and the Company shall not
seek to recover all or any part of such payment from the Executive or from
whomsoever may be entitled thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement, except to the extent
provided in Section 2.3(f) herein.
5.2 Contractual Rights to Benefits. This Agreement establishes and vests in
the Executive a contractual right to the benefits to which he is entitled
hereunder. However, nothing herein contained shall require or be deemed to
require, or prohibit or be deemed to prohibit, the Company to segregate,
earmark, or otherwise set aside any funds or other assets, in trust or
otherwise, to provide for any payments to be made or required hereunder.
Article 6. Term of Agreement
This Agreement will commence on the Effective Date first written above, and
shall continue in effect irrevocably for three (3) full calendar years. However,
at the end of the first year of such three-year (3) period, this Agreement shall
be extended automatically for one (1) additional year, unless the Company
notifies the Executive in writing, prior to the occurrence of the automatic
extension, that the term of this Agreement will not be extended. Moreover, upon
the end of each subsequent year, this Agreement shall also be extended
automatically for one (1) additional year, unless the Company otherwise notifies
the Executive in writing prior to the occurrence of such automatic extension. In
the case where the Company properly notifies the Executive that the
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Agreement will no longer be extended, the Agreement will terminate at the end of
the term, or extended term, then in progress.
However, in the event a Change in Control occurs during the original or any
extended term, this Agreement will remain in effect for twenty-four (24) months
beyond the month in which such Change in Control occurred.
Article 7. Legal Remedies
7.1 Dispute Resolution. The Executive shall have the right and option to
elect to have any good faith dispute or controversy arising under or in
connection with this Agreement settled by litigation or arbitration. If
arbitration is selected, such proceeding shall be conducted by final and binding
arbitration before a panel of three (3) arbitrators in accordance with the laws
and under the administration of the American Arbitration Association.
7.2 Payment of Legal Fees. In the event that it shall be necessary or
desirable for the Executive to retain legal counsel and/or to incur other costs
and expenses in connection with the enforcement of any or all of his rights
under this Agreement, the Company shall pay (or the Executive shall be entitled
to recover from the Company) the Executive's attorneys' fees, costs, and
expenses in connection with a good faith enforcement of his rights including the
enforcement of any arbitration award. This shall include, without limitation,
court costs and attorneys' fees incurred by the Executive as a result of any
good faith claim, action, or proceeding, including any such action against the
Company arising out of, or challenging the validity or enforceability of this
Agreement or any provision hereof.
Article 8. Successors
The Company shall require any successor (whether direct or indirect, by
purchase, merger, reorganization, consolidation, acquisition of property or
stock, liquidation, or otherwise) of all or a significant portion of the assets
of the Company by agreement, in form and substance satisfactory to the
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform if
no such succession had taken place. Regardless of whether such agreement is
executed, this Agreement shall be binding upon any successor in accordance with
the operation of law and such successor shall be deemed the "Company" for
purposes of this Agreement.
Article 9. Miscellaneous
9.1 Employment Status. This Agreement is not, and nothing herein shall be
deemed to create, an employment contract between the Executive and the Company
or any of its subsidiaries. Subject to the terms of any employment contract
between the Executive and the Company, the Executive acknowledges that the
rights of the Company remain wholly intact to change or reduce at any time and
from time to time his compensation, title, responsibilities, location, and all
other aspects of the employment relationship, or to discharge him prior to a
Change in Control (subject to such discharge possibly being considered a
Qualifying Termination pursuant to Section 2.2).
9.2 Entire Agreement. This Agreement contains the entire understanding of
the Company and the Executive with respect to the subject matter hereof. In
addition, the payments provided for under this Agreement in the event of the
Executive's termination of employment shall be in lieu of any severance benefits
payable under any employment contract between the Executive and the Company or
any severance plan, program, or policy of the Company to which he might
otherwise be entitled.
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9.3 Notices. All notices, requests, demands, and other communications
hereunder shall be sufficient if in writing and shall be deemed to have been
duly given if delivered by hand or if sent by registered or certified mail to
the Executive at the last address he has filed in writing with the Company or,
in the case of the Company, at its principal offices.
9.4 Execution in Counterparts. This Agreement may be executed by the parties
hereto in counterparts, each of which shall be deemed to be original, but all
such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart.
9.5 Conflicting Agreements. The executive hereby represents and warrants to
the Company that his entering into this Agreement, and the obligations and
duties undertaken by him hereunder, will not conflict with, constitute a breach
of, or otherwise violate the terms of, any other employment or other agreement
to which he is a party, except to the extent any such conflict, breach, or
violation under any such agreement has been disclosed to the Board in writing in
advance of the signing of this Agreement.
9.6 Severability. In the event any provision of this Agreement shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Agreement, and the Agreement shall be construed and
enforced as if the illegal or invalid provision had not been included. Further,
the captions of this Agreement are not part of the provisions hereof and shall
have no force and effect.
Notwithstanding any other provisions of this Agreement to the contrary, the
Company shall have no obligation to make any payment to the Executive hereunder
to the extent, but only to the extent, that such payment is prohibited by the
terms of any final order of a Federal or state court or regulatory agency of
competent jurisdiction; provided, however, that such an order shall not affect,
impair, or invalidate any provision of this Agreement not expressly subject to
such order.
9.7 Modification. No provision of this Agreement may be modified, waived, or
discharged unless such modification, waiver, or discharge is agreed to in
writing and signed by the Executive and by a member of the Board, as applicable,
or by the respective parties' legal representatives or successors.
9.8 Applicable Law. To the extent not preempted by the laws of the United
States, the laws of Delaware shall be the controlling law in all matters
relating to this Agreement without giving effect to principles of conflicts of
laws.
IN WITNESS WHEREOF, the parties have executive this Agreement on this
_______________ day of ________________, 2000.
ATTEST Xxxxxxx Lifesciences Corporation
By: ________________________ By:_______________________
Corporate Secretary Title:______________________
__________________________
Executive
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