CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") is made and
entered into this 24th day of March, 1999 by and between Embrex, Inc.
("Company"), a North Carolina corporation, and XXXXX X. XXXXXX ("Employee").
WHEREAS, the Board of Directors ("Board") of the Company considers the
maintenance of a vital management group to be essential in protecting and
enhancing the best interests of the Company and its shareholders;
WHEREAS, the Board recognizes that the possibility of a Change in
Control (as hereinafter defined) exists and that the threat of or the occurrence
of a Change in Control can result in significant distractions of its key
management personnel because of the uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is in the best interest of the
Company and its shareholders to ensure the Employee's continued dedication and
efforts on behalf of the Company; and
WHEREAS, in order to induce the Employee to remain in the employ of the
Company, particularly in the event of a threat of or the occurrence of a Change
in Control and to dispel any concerns that the Employee may have about taking an
active part in the defense against an inappropriate attempt to bring about a
Change in Control of the Company, the Company desires to enter into this
Agreement with the Employee to provide the Employee with certain payments and
benefits in the event that his employment with the Company is terminated as a
result of, or in connection with, a Change in Control.
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, the legal sufficiency and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. Employment. Employee acknowledges that he is employed with the
Company pursuant to an Employment Agreement dated March 15, 1999 and hereby
agrees that to the extent any provision of this Agreement should be contrary to
any provision of the Employment Agreement, the terms of this Agreement shall
control.
2. Definitions. For purposes of this Agreement, the following terms have
the meanings indicated:
(A) "Acquiring Person," shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term is
hereinafter defined) and Associates (as such term is hereinafter defined) of
such Person, shall be the Beneficial Owner (as such term is hereinafter defined)
of thirty-three percent (33%) or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan or employee stock plan of the Company
or of any Subsidiary of the Company, (iv) any dividend reinvestment plan of the
Company, or (v) any Person or entity organized, appointed, or established by the
Company for or pursuant to the terms of such plan. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the result of an
acquisition of Common Stock by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares beneficially
owned by such Person to thirty-three percent (33%) or more of the Common Stock
of the Company then outstanding; provided, however, that if a Person shall
become the Beneficial Owner of thirty-three (33%) or more of the Common Stock of
the
Company, then outstanding by reason of such an acquisition and shall, after
such acquisition, become the Beneficial Owner of any additional shares of Common
Stock, then such Person shall be deemed to be an "Acquiring Person." In
addition, notwithstanding the foregoing, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
Paragraph (A), has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of shares of Common Stock so that
such Person would no longer be an "Acquiring Person" as defined pursuant to the
foregoing provisions of this Paragraph (A), then such Person shall not be deemed
to be an "Acquiring Person" for any purposes of this Agreement.
(B) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(C) A Person shall be deemed the "Beneficial Owner" of and shall
be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right or
obligation to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial Owner"
of, or to "beneficially own," (a) securities tendered pursuant to
a tender or exchange offer made by such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange, or (b) at any time prior
to the occurrence of a Triggering Event, securities issuable upon
exercise of the Rights ("Triggering Event" and "Rights" shall
have the respective meanings ascribed to such terms as set forth
in the Rights Agreement between Embrex, Inc. and Branch Banking &
Trust Company as Rights Agent, dated as of March 21, 1996 and as
in effect on the date hereof ("Rights Agreement")), or (c) from
and after the occurrence of a Triggering Event, securities
issuable upon exercise of Rights which were acquired by such
Person or any of such Person's Affiliates or Associates prior to
the Distribution Date (as defined in the Rights Agreement) or
pursuant to Section 3(a) or Section 22 of the Rights Agreement
(the "Original Rights") or pursuant to Section 11(i) of the
Rights Agreement in connection with an adjustment made with
respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under
the Exchange Act and any successor provision thereof), including
pursuant to any agreement, arrangement or understanding, whether
or not in writing; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such security if
such agreement, arrangement or understanding; (a) arises
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solely from a revocable proxy given in response to a public proxy
or consent solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and Regulations
under the Exchange Act, and (b) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or
understanding (whether or not in writing), but excluding
customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of
securities until the expiration of forty days after the date of
such acquisition, for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in the
provision to subparagraph (ii) of this paragraph (C)) or
disposing of any voting securities of the Company.
(D) "Continuing Director" shall mean (i) any member of the Board
of Directors of the Company, while such Person is a member of the Board of
Directors, who is not an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate, and was a member of the Board of Directors prior to the
date of this Agreement, or (ii) any Person who subsequently becomes a member of
the Board of Directors, while such Person is a member of the Board of Directors,
who is not an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative of an Acquiring Person or of any such Affiliate or
Associate, if such Person's nomination for election or election to the Board of
Directors is recommended or approved by a majority of the Continuing Directors.
(E) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity.
(F) "Subsidiary" shall mean, with reference to any other Person,
any corporation or other entity of which securities or other ownership interests
having ordinary voting power, in the absence of contingencies, to elect at least
a majority of the directors or other persons performing similar functions is
beneficially owned, directly or indirectly, by such Person, or which is
otherwise controlled by such Person.
(G) "Termination Date" shall mean the date on which the
Employee's employment with the Company is terminated by the Employee for Good
Reason or by the Company for reasons other than Cause, Disability, or death.
3. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean the occurrence of any one of the following events:
(A) Any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan or employee stock plan of the Company or of
any Subsidiary of the Company, any dividend reinvestment plan of the Company, or
any Person or entity organized, appointed, or established by the Company for or
pursuant to the terms of any such plan) alone or together with its Affiliates or
Associates, shall, at any time after the date hereof, become an Acquiring
Person; or
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(B) The Continuing Directors cease for any reason to constitute a
majority of the Board of Directors of the Company; or
(C) Directly or indirectly:
(i) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the Company),
and the Company shall not be the continuing or surviving
corporation of such consolidation or merger; or
(ii) any Person (other than Subsidiary of the Company)
shall consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation of
such consolidation or merger, and in connection with such
consolidation or merger, all or part of the outstanding shares of
Common Stock shall be changed into or exchanged for stock or
other securities of any other Person or cash or any other
property; or
(iii) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer) in
one transaction or a series of related transactions, assets or
earning power aggregating more than fifty percent (50%) of the
assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the
Company or any Subsidiary of the Company).
4. Termination Following Change in Control. After the occurrence of a
Change in Control, Employee shall be entitled to receive payments and benefits
pursuant to this Agreement if, within two (2) years after the occurrence of a
Change in Control, his employment with the Company is terminated under any of
the following circumstances:
(A) The Company terminates Employee's employment for reasons
other than "Cause," "Disability," or death. For purposes of this Agreement,
"Cause" shall be defined as:
(i) the willful and continued failure by Employee to
perform substantially his duties with the Company (other than any
such failure resulting from his Disability) for a significant
period of time, after a demand for substantial performance is
delivered to Employee by the Board or a committee thereof, which
specifically identifies the manner in which the Board believes
that Employee has not substantially performed his duties; or
(ii) the willful engaging by Employee in gross misconduct
materially and demonstrably injurious to the Company. No act, or
failure to act, on Employee's part shall be considered "willful"
unless done, or omitted to be done, by Employee in the absence of
good faith and without a reasonable belief that his action or
failure to act was in the best interest of the Company.
For purposes of this Agreement, "Disability" shall mean a physical or
mental infirmity which impairs the Employee's ability substantially to perform
his employment duties for the Company and which continues for a period of at
least one hundred and eighty (180) consecutive days.
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(B) The Employee terminates his employment with the Company for
"Good Reason." For purposes of this Agreement, "Good Reason" shall mean the
occurrence after a Change in Control of any of the following events or
conditions:
(i) a change in the Employee's status, title, position or
responsibilities (including reporting responsibilities) which, in
the Employee's reasonable judgment, represents an adverse change
from his status, title, position or responsibilities in effect
immediately prior thereto; the assignment to Employee of any
duties or responsibilities which in the Employee's reasonable
judgment, are inconsistent with his status, title, position or
responsibilities; or any removal of Employee from or failure to
reappoint or reelect him to any of such positions, status, or
title except in connection with the termination of his employment
for Disability, Cause, or death, or by the Employee other than
for Good Reason,
(ii) a reduction in the Employee's base salary;
(iii) the Company's requiring the Employee to be based at
any place outside a 30 mile radius from Durham, North Carolina,
except for reasonably required travel on the Company's business
which is not greater than such travel requirements prior to the
Change in Control;
(iv) the failure by the Company to continue in effect any
compensation, welfare or benefit plan in which Employee is
participating at the time of a Change in Control without
substituting plans providing Employee with substantially similar
or greater benefits, or the taking of any action by the Company
which would adversely affect Employee's participation in or
materially reduce Employee's benefits under any of such plans or
deprive Employee of any material fringe benefit enjoyed by
Employee at the time of the Change in Control;
(v) any purported termination of Employee's employment for
Cause or Disability without grounds therefore;
(vi) the insolvency or the filing (by any party including
the Company) of a petition for bankruptcy of the Company;
(vii) any material breach by the Company of any provision
of this Agreement; or
(viii) the failure of the Company to obtain an agreement,
satisfactory to the Employee, from any successor or assign of the
Company to assume and agree to perform this Agreement.
5. Severance Pay and Benefits. In the event that Employee's employment
with the Company terminates under any of the circumstances described in
Paragraph 4 above, Employee shall be entitled to receive all of the following:
(A) all accrued compensation and any pro-rata bonuses Employee
may have earned up to the Termination Date;
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(B) a severance payment equal to two and nine-tenths (2.9) times
the amount of the Employee's most recent annual compensation, including the
amount of his most recent annual bonus. The severance payment shall be paid in
thirty-four (34) equal monthly installments without interest, commencing one
month after the Termination Date;
(C) a continuation of benefits. The Company shall maintain in
full force and effect, for two (2) years after the Termination Date, all life
insurance, health, accidental death and dismemberment, and disability plans and
other benefit programs in which Employee is entitled to participate immediately
prior to the Termination Date provided that Employee's continued participation
is possible under the general terms and provisions of such plans and programs.
Employee's continued participation in such plans and programs shall be at no
greater cost to Employee than the cost he bore for such participation
immediately prior to the Termination Date. If Employee's participation in any
such plan or program is barred, the Company shall arrange upon comparable terms,
and at no greater cost to Employee than the cost he bore for such plans and
programs prior to the Termination Date, to provide Employee with benefits
substantially similar to, or greater than, those which he is entitled to receive
under any such plan or program; and
(D) a lump sum payment (or otherwise as specified by Employee to
the extent permitted by the applicable plan) of any and all amounts contributed
to a Company pension or retirement plan which Employee is entitled to under the
terms of any such plan.
6. No Duty to Mitigate. Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, and no such payment shall be offset or reduced by the amount of
any compensation or benefits provided to the Employee in any subsequent
employment. The severance pay and benefits under this Agreement shall be in lieu
of any other severance pay to which Employee may be entitled from the Company.
7. Stock Options. Upon the occurrence of a Change in Control, all stock
options shall immediately vest and, except as may be required by the nature of
the transaction constituting the Change in Control, the options shall remain
exercisable for the duration of the original option term. If plans or agreements
to which outstanding options have been issued do not provide for immediate
vesting, the Company shall use its best efforts to effect amendments permitting
the acceleration of vesting so long as no material adverse accounting treatment
results to the Company.
8. Fees and Expenses. The Company agrees that if Employee is entitled to
any severance pay or benefits under this Agreement, and the Company or its
survivor disputes the obligation to pay such severance pay or benefits and the
Employee prevails, in whole or in part, the Company or its survivor shall
promptly pay or reimburse Employee for all expense incurred by Employee in such
dispute, including, but not limited to, attorneys fees and associated expenses.
9. Excise Tax Payments.
(A) In the event that any payment or benefit (within the meaning
of Section 28OG(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), to the Employee or for his benefit paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in connection
with, or arising out of, his employment with the Company
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or a change in ownership or effective control of the Company or of a substantial
portion of its assets (a "Payment" or "Payments"), would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties are
incurred by the Employee with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Employee will be entitled to receive
an additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any interest or penalties, other
than interest and penalties imposed by reason of the Employee's failure to file
timely a tax return or pay taxes shown due on his return, imposed with respect
to such taxes and the Excise Tax), including any Excise Tax imposed upon the
Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(B) An initial determination as to whether a Gross-Up Payment is
required pursuant to this Agreement and the amount of such Gross-Up Payment
shall be made at the Company's expense by an accounting firm selected by the
Company and reasonably acceptable to the Employee which is designated as one of
the five largest accounting firms in the United States (the "Accounting Firm").
The Accounting Firm shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation to the Company
and the Employee within ten days of the Termination Date if applicable, or such
other time as requested by the Company or by the Employee (provided the Employee
reasonably believes that any of the Payments may be subject to the Excise Tax)
and if the Accounting Firm determines that no Excise Tax is payable by the
Employee with respect to a Payment or Payments, it shall furnish the Employee
with an opinion reasonably acceptable to the Employee that no Excise Tax will be
imposed with respect to any such Payment or Payments. Within ten days of the
delivery of the Determination to the Employee, the Employee shall have the right
to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as
determined pursuant to this Paragraph 9(B) shall be paid by the Company to the
Employee within five days of the receipt of the Accounting Firm's determination.
The existence of the Dispute shall not in any way affect the Employee's right to
receive the Gross-Up Payment in accordance with the Determination. Upon the
final resolution of a Dispute, the Company shall promptly pay to the Employee
any additional amount required by such resolution. If there is no Dispute, the
Determination shall be binding, final and conclusive upon the Company and the
Employee subject to the application of Paragraph 9(C) below.
(C) Notwithstanding anything in this Agreement to the contrary,
in the event that, according to the Determination, an Excise Tax will be imposed
on any Payment or Payments, the Company shall pay to the applicable government
taxing authorities as Excise Tax withholding, the amount of the Excise Tax that
the Company has actually withheld from the Payment or Payments.
10. Successors and Assigns.
(A) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its successors, and assigns, and the Company shall
require any successor or assign 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 it if no such succession or assignment had taken place.
(B) Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Employee, his beneficiaries, or legal
representatives except
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by will or by the laws of dissent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Employee's legal personal
representative.
11. Notice. Notice as provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person or mailed
by United States Registered Mail, Return Receipt Requested, Postage Pre-Paid,
addressed to the respective addresses last given by each party to the other,
provided that all notices to the Company shall be directed to the attention of
the Board with a copy to Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx,
Attn. Xxxxxx X. Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
counsel for the Company. All notices and communications shall be deemed to have
been received on the date of delivery thereof or on the third business day of
the mailing thereof, except that notice of change of address shall be effective
only upon receipt.
12. Modifications. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is agreed
to in writing signed by the Employee and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any conditional provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
of the same at any prior or subsequent time.
13. Entire Agreement. No agreement 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.
14. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of North Carolina.
15. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
16. Covenant Not to Compete. Employee acknowledges that by virtue of his
employment with the Company, he shall have access to and control of confidential
and proprietary information concerning the Company's business and that the
Company's business depends, to a considerable extent, on the individual's
skills, efforts, and leadership of Employee. Accordingly, and in consideration
of the Company's commitments to Employee under this Agreement, Employee
expressly covenants and agrees that for the two (2) year period following the
termination of his employment with the Company (regardless of circumstances of
such termination) Employee will not, without the prior consent of the Company:
(A) on Employee's own or another's behalf, whether as an officer,
director, stockholder, partner, associate, owner, employee, consultant, or
otherwise, directly or indirectly:
(i) within the geographical areas set forth below, solicit
or do business which is the same, similar to, or otherwise in competition with
the business engaged in by the Company from or with persons or entities who are
customers of the Company, who were customers of the Company at any time during
the last year of Employee's employment with the Company or to whom the Company
had made proposals for business at any time during the last year of Employee's
employment with the Company; or
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(ii) offer employment to, or otherwise solicit for
employment, any employee or other person who had been employed by the Company
during the last year of Employee's employment with the Company.
(B) within the geographical area set forth below, be employed (or
otherwise engaged) in a management capacity, other capacity providing the same
or similar services which Employee provided to the Company, or any capacity
connected with competitive business activities by any person or entity that
engages in the same, similar, or otherwise competitive business as the Company;
(C) directly or indirectly take action which is primarily
intended to be materially detrimental to the Company's goodwill, name, business
relations, prospects, and operations.
(D) the restrictions set forth in this Paragraph 16 apply to the
following geographical areas:
(i) Research Triangle Park, North Carolina;
(ii) any city, metropolitan area, county (or similar
political subdivisions in foreign countries) in which the Company is located, or
does, or during Employee's employment with the Company, did business;
(iii) any city, metropolitan area, county (or similar
political subdivisions in foreign countries) in which Employee's substantial
services were provided, or for which Employee had substantial responsibility, or
in which Employee performed substantial work on the Company's projects while
employed by the Company.
Employee acknowledges that the covenants contained in this Paragraph 16
are reasonably necessary to protect the legitimate business interests of the
Company and are reasonable with respect to scope, time, and territory and are
described with sufficient accuracy and definiteness to enable him to understand
the scope of the restrictions imposed upon him. If any of the provisions,
clauses, or phrases in this Paragraph 16 are held unenforceable by a court of
competent jurisdiction, then the parties desire that any such provision, clause
or phrase be "blue-penciled" or rewritten by the court to the extent necessary
to render it enforceable.
17. Income Tax Payment. In the event Employee receives payments or
benefits pursuant to Paragraph 5 of this Agreement and incurs state or federal
personal income tax liability as a result of the receipt of such payments or
benefits, then Employee is entitled to receive an additional payment (the
"Income Tax Payment") in an amount equal to the state and federal personal
income tax assessed on such payments or benefits. Said Income Tax Payment shall
be made prior to any calculation of the Excise Tax Payment required by Paragraph
9 of this Agreement. Said Income Tax Payment shall be paid to Employee by the
Company by April 15 of the year following each year in which such tax liability
occurs.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
EMBREX, INC.
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------
ATTEST: Title: V.P. Finance and Administration
EMPLOYEE:
/s/ Xxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------- --------------------------------------
Corporate Secretary XXXXX X. XXXXXX
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