CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("AGREEMENT"), is made and entered
into this 9th day of September, 1996 by and between Embrex, Inc. ("Company"),
a North Carolina corporation, and Xxx X. Xxxxxxxx ("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, THEREFOR, 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 September 9th, 1996 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-five 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 deemed 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 to 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
2
Exchange Act of 1934, as amended (the "Exchange Act").
(C) A Person shall be deemed that "Beneficial Owner" of and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any 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 Agent, dated as of March 21, 1996 and as
in effect on the date hereof ("Right 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
3
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 "Beneficially 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 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 or 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
4
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 interest
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
(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 merger 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 merger 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 of 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 of 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, "Clause" 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 the Employee has not substantially performed his duties; or
6
(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.
(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;
7
(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 participating in or materially
reduce Employee's benefits under any of such plans or deprive Employee or any
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;
(B) a severance payment equal to two and nine-tenths (2.9) times the amount
of the Employee's more 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:
8
(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 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
9
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
280G(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 this Company 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 any 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
10
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. Successor 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
11
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 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 addressed 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
12
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
EMBREX, INC.
By: (Signature of Xxxxxxx X. Xxxxxxxx)
Title: President & CEO
ATTEST
EMPLOYEE: (sig of Xxx X. Xxxxxxxx)
13
