EXHIBIT 10.10.2
CHANGE IN CONTROL EXECUTIVE SEVERANCE AGREEMENT
This Change in Control Executive Severance Agreement (this "Agreement")
is entered into this 9th day of July, 2003, by and between Serologicals
Corporation, a Georgia corporation having its principal place of business at
0000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 (the "Company"), and Xxxxx X. Xxxx
("Executive").
The purpose of this Agreement is to afford Executive additional
security concerning his employment with the Company by providing for certain
termination payments to Executive if within 18 months following a Change in
Control, (i) the Company terminates Executive's employment without Cause or (ii)
Executive terminates his employment for Good Reason.
Based upon the foregoing, and in consideration of Executive's continued
employment with the Company, the Company agrees as follows:
1. Term. This Agreement shall be effective as of the date first
written above and shall continue in effect until the earliest of (a) written
notice by the Company of cancellation of this Agreement, provided that no such
notice shall be effective within 12 months prior to, or within 18 months after,
a Change in Control, (b) termination of Executive's employment prior to a Change
in Control by Executive or the Company, or (c) termination of Executive's
employment within 18 months after a Change in Control by the Company for Cause,
by Executive without Good Reason, or as a result of Executive's death or
Disability.
2. Termination after Change in Control by Company without Cause
or by Executive for Good Reason. If at any time within 18 months after a Change
in Control, either (i) the Company terminates Executive's employment without
Cause, or (ii) Executive terminates his
employment for Good Reason, then, subject to paragraph 4, the Company shall
provide the following to Executive:
(a) Executive's base salary earned through the date of
employment termination, but not previously paid;
(b) reimbursement of reasonable and appropriate
unreimbursed business expenses incurred by Executive through the date
of termination; provided Executive submits supporting documentation
thereof in accordance with the policies and procedures of the Company;
(c) a pro rata portion of Executive's annual target bonus
determined by multiplying (i) a fraction, the numerator of which is the
number of days Executive was employed in the fiscal year in which
Executive terminates employment and the denominator of which is 365, by
(ii) Executive's annual target bonus for the fiscal year in which
Executive's employment is terminated;
(d) Three (3) times Executive's highest annual rate of
base salary during the 18-month period prior to the date Executive's
employment is terminated;
(e) Three (3) times the greater of (i) Executive's annual
target bonus for the fiscal year in which Executive's employment is
terminated and (ii) Executive's annual bonus earned for the fiscal year
immediately preceding the fiscal year in which Executive's employment
is terminated;
(f) Three (3) times the average of the Company's matching
and profit sharing contributions, if any, allocated to Executive's
account under the Company's 401(k) plan
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for the 3 years (or the period Executive was employed with the Company,
if less) prior to the Change in Control;
(g) Company-paid medical, disability and life insurance
benefit coverage comparable to such coverage provided by the Company
immediately prior to the Change in Control for a period of 3 years
following the date of employment termination, to the extent comparable
benefits are not provided by a subsequent employer of Executive during
such period; provided that the Company, in its discretion, may elect,
with respect to any or all of such insurance coverages at any time, to
pay Executive cash in an amount that the Company in good faith
determines to be equivalent to the cost to Executive to purchase such
coverage for the entire period or any portion thereof;
(h) The Company, at its expense, shall provide for
outplacement services to Executive for the 6-month period following the
date of employment termination by a mutually agreed upon outplacement
services firm; and
(i) Executive shall have the right to receive any
benefits payable under the Company's employee benefit plans, programs
and policies (other than any other severance pay plan, program or
policy) which Executive otherwise has a nonforfeitable right to receive
under the terms of such plans, programs and policies.
3. Other Termination. If Executive's employment is terminated (i)
for any reason prior to a Change in Control or (ii) within 18 months after a
Change in Control (A) by the Company for Cause, (B) by Executive without Good
Reason, or (C) as a result of Executive's death or Disability, Executive shall
be entitled to no payments or benefits under this Agreement, other than as
provided under paragraph 7.
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4. Certain Additional Payments by Company. If
(a) the Company or the Company's accountants determine
that the payments or benefits called for under this Agreement or any
other payments or benefits made available to Executive would constitute
parachute payments (within the meaning of Section 280G(b) of the
Internal Revenue Code of 1986, as amended (the "Code")) that would
result in Executive being subject to an excise tax under Section 4999
of the Code ("Payments"), and
(b) the Payments equal or exceed 115% of the Safe Harbor
Amount (as defined in this paragraph 4),
then the Company shall make a Gross-Up Payment (as defined in this paragraph 4)
to or on behalf of Executive as and when such determination(s) and
assessment(s), as appropriate, are made; provided Executive takes such action
(other than waiving his right to any Payments) as the Company reasonably
requests under the circumstances to mitigate or challenge such tax.
If the Company or the Company's accountants determine that the Payments
exceed 100% but are less than 115% of the Safe Harbor Amount, then some or all
of the Payments (as determined by the Company in its absolute discretion) shall
be reduced to the extent the Company deems necessary so that such Payments are
no greater than the Safe Harbor Amount.
The "Safe Harbor Amount" for purposes of this Agreement shall mean 2.99
times Executive's base amount (within the meaning of Section 280G(b) of the
Code). A "Gross-Up Payment" for purposes of this Agreement shall mean a payment
to or on behalf of Executive that shall be sufficient to pay (i) any excise tax
on the Payments under Section 4999 of the Code, (ii) any federal, state and
local income tax and social security or other employment tax, and any
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excise tax under Section 4999 of the Code, on the amount described in clause (i)
and the amounts described in this clause (ii), and (iii) any interest or
penalties assessed by the Internal Revenue Service on Executive if such interest
or penalties are attributable to the Company's failure to comply with its
obligations under this paragraph 4 or applicable law. Any determination under
this paragraph 4 by the Company or the Company's accountants shall be made in
accordance with Section 280G of the Code and any applicable related regulations
(whether proposed, temporary or final) and any related Internal Revenue Service
rulings and any related case law. For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rates of taxation in the state and locality of residence upon
the date of termination, net of the maximum reduction in federal income taxes
that could be obtained from deduction of such state and local taxes.
If the Company reasonably requests that Executive take action to
mitigate or challenge, or to mitigate and challenge, any such tax or assessment
and Executive complies with such request, the Company shall provide Executive
with such information and such expert advice and assistance from the Company's
accountants, lawyers and other advisors as he may reasonably request and shall
pay for all expenses incurred in effecting such compliance and any related
fines, penalties, interest and other assessments.
5. Time of Payment. The Company shall pay any cash amounts due to
Executive under paragraph 2 in a lump sum payment within 30 days following
termination of Executive's employment.
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6. No Other Severance Payments. If Executive receives payment
under paragraph 2, such payment shall be in lieu of any payment under any other
severance pay plan, program or policy of the Company, and Executive shall not be
entitled to any severance payments that might otherwise be payable to Executive,
whether by employment contract or otherwise. To the extent severance payment is
made under any other such severance pay plan, or otherwise, payment provided for
under paragraph 2 shall be offset by the amount of such payment.
7. Stock Options and Other Stock-Based Awards. All stock options,
stock appreciation rights, restricted stock, deferred stock units and other
stock-based awards of Executive ("awards") outstanding and not yet vested or
exercisable or which are subject to a substantial risk of forfeiture as of the
date of a Change in Control shall immediately vest and become immediately
exercisable and no longer subject to a substantial risk of forfeiture upon the
Change in Control, unless the agreement documenting the award provides otherwise
or such awards are assumed or replaced by the continuing or acquiring company.
If awards are assumed or replaced and the employment of Executive with the
continuing or acquiring company terminates for any reason other than Cause
within 18 months of the date of the Change in Control, then the assumed or
replaced awards outstanding and not yet exercisable or which are subject to a
substantial risk of forfeiture on the day prior to such termination shall
immediately vest and become immediately exercisable and no longer subject to a
substantial risk of forfeiture upon such termination.
8. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) The term "Board" as used in this Agreement means the
board of directors of the Company.
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(b) The term "Cause" as used in this Agreement has the
same meaning given such term in the employment agreement between
Executive and the Company as of any date of determination, or if there
is no such employment agreement or the employment agreement does not
define "Cause," the term "Cause" means (i) an act of dishonesty causing
harm to the Company or any Subsidiary; (ii) the knowing disclosure of
confidential information relating to the Company's or any Subsidiary's
business; (iii) habitual drunkenness or narcotic drug addiction; (iv)
conviction of, or a plea of nolo contender with respect to, a felony;
(v) the willful refusal to perform, or the gross neglect of, the duties
assigned to Executive; (vi) Executive's willful breach of any law that,
directly or indirectly, affects the Company or any Subsidiary; (vii)
Executive's material breach of his duties following a Change in
Control; provided that such duties do not differ in any material
respect from Executive's duties during the 90-day period immediately
prior to such Change in Control (other than as a result of incapacity
due to physical or mental illness), which is demonstrably willful and
deliberate on Executive's part, which is committed in bad faith or
without reasonable belief that such breach is in the best interests of
the Company or a Subsidiary, and which is not remedied in a reasonable
period after receipt of written notice from the Company or any
Subsidiary specifying such breach.
(c) The term "Change in Control" as used in this
Agreement means the occurrence of any of the events described below:
(i) the acquisition, in one or more
transactions, of beneficial ownership (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) by any person or entity or any
group
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of persons or entities who constitute a group (within the
meaning of Section 13(d)(3) of the Exchange Act), other than
(A) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a Subsidiary or (B) a
person who acquires such securities directly from the Company
in a privately-negotiated transaction, of any securities of
the Company such that, as a result of such acquisition, such
person, entity or group either (x) beneficially owns (within
the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, more than 35% of the Company's outstanding voting
securities entitled to vote on a regular basis for a majority
of the members of the Board or (y) otherwise has the ability
to elect, directly or indirectly, a majority of the members of
the Board;
(ii) a change in the composition of the Board
such that a majority of the members of the Board are not
Continuing Directors;
(iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other business
entity, other than 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 50% of the total
voting power represented by the voting securities of the
Company or such surviving entity outstanding immediately after
such merger or consolidation; or
(iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement
for the sale or disposition by the
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Company of (in one or more transactions) all or substantially
all of the Company's assets.
Notwithstanding the foregoing, the preceding events shall not be deemed
to be a Change in Control if, prior to any transaction or transactions
causing such a change, a majority of the Continuing Directors shall
have voted not to treat such transaction or transactions as resulting
in a Change in Control.
(d) The term "Continuing Director" as used in this
Agreement means, as of any date of determination thereof, any member of
the Board who (i) was a member of such Board on the date which is 24
months prior to the date of such determination or (ii) was nominated
for election or elected to such Board with the affirmative vote of a
majority of the Continuing Directors who were members of such Board at
the time of such nomination or election.
(e) The term "Disability" as used in this Agreement means
termination because of Executive's failure to properly and fully
perform the duties and responsibilities of his employment with the
Company, due to mental or physical illness, for a period of 120
consecutive days, or 180 days, even though not consecutive, within any
360-day period, all as determined in good faith by the Board and
supported by medical evidence.
(f) The term "Good Reason" as used in this Agreement
means (i) a material reduction in Executive's job functions, duties or
responsibilities, or a change in Executive's reporting relationships
that has a material and adverse effect on the status of Executive's job
functions, duties or responsibilities; (ii) any material reduction in
Executive's base salary, target bonus or maximum bonus opportunity;
(iii) absent
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Executive's consent, a required relocation of Executive of more than 35
miles from Executive's primary place of business as of the date of the
Change in Control or a significant increase in required travel by
Executive; (iv) the failure of any business entity with which the
Company merges or consolidates, or to which the Company sells all or
substantially all of its assets, to assume this Agreement; or (v) any
material breach of any of the terms of this Agreement; provided,
however, Good Reason shall not exist unless (A) Executive gives the
Company a detailed, written statement of the circumstances that form
the basis for Executive's belief that Good Reason exists and gives the
Company a 15-day period after the delivery of such statement to cure
the circumstances and (B) Executive actually resigns his employment
with the Company after the end of such 15-day period (but no later than
60 days after the end of such 15-day period) if Executive reasonably
and in good faith determines that Good Reason continues to exist after
the end of such 15-day period.
(g) The term "Subsidiary" as used in this Agreement means
any corporation, partnership, joint venture or other business entity of
which 50% or more of the outstanding voting power is beneficially
owned, directly or indirectly, by the Company.
9. Amendment. This Agreement may be amended at any time by the
Board to the extent the Board deems necessary or appropriate upon written notice
by the Company of such amendment; provided, however, absent Executive's written
consent, no amendment shall be effective within 12 months prior to, or within 18
months after, a Change in Control to the extent the amendment adversely affects
any rights of Executive.
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10. Attorneys' Fees. If any action at law or in equity is
necessary for Executive to enforce or interpret the terms of this Agreement, the
Company shall pay Executive's reasonable attorneys' fees and other expenses
incurred with respect to such action.
11. Partial Invalidity. If any provision of this Agreement is held
by a court of competent jurisdiction be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
12. Agreement Supersedes Any Inconsistent Prior Agreements or
Understandings. The terms of this Agreement supersede any prior promises,
policies, representations, understandings, arrangements or agreements between
the parties with respect to payments and benefits that become due as a result of
a change in control of the Company (including a Change in Control as defined in
this Agreement), including, but not limited to, any prior change in control
severance agreement that may have been entered into between the parties as of
March 27, 1998.
13. Not an Employment Contract. Nothing in this Agreement extends
or expands Executive's present rights concerning employment with the Company in
the absence of a Change in Control or is intended to create a contract,
guarantee or promise of continued employment by the Company. The Company shall
have no obligation hereunder if Executive's employment is terminated for any
reason prior to a Change in Control.
14. Employment with Subsidiary. A transfer between the Company and
a Subsidiary or between Subsidiaries shall not be treated as a termination of
employment with the Company under this Agreement.
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15. Notices. All notices required or permitted to be given by
either party hereunder, including notice of change of address, shall be in
writing and delivered by hand, or mailed, postage prepaid, certified or
registered mail, return receipt requested, to the other party at the address set
forth below or to such other address as either party may from time to time
designate by 10 days advance written notice pursuant to this paragraph 15:
If to the Company: Serologicals Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Vice President, Human Resources
If to Executive: Xxxxx X. Xxxx
16. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Georgia (without reference to the
choice of law principles thereof). Executive consents to jurisdiction and venue
in the state and federal courts of the State of Georgia for any action arising
from a dispute under this Agreement, and for any such action brought in such a
court, expressly waives any defense he might otherwise have based on lack of
personal jurisdiction or improper venue, or that the action has been brought in
an inconvenient forum.
17. Further Assurances. The parties hereto agree that, after the
execution of this Agreement, they will make, do, execute or cause or permit to
be made, done or executed all such further and other lawful acts, deeds, things,
devices, conveyances and assurances in law whatsoever as may be required to
carry out the true intention and to give full force and effect to this
Agreement.
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18. Counterparts. This Agreement may be executed in two or more
counterparts with the same effect as if the signatures to all such counterparts
were upon the same instrument, and all counterparts shall constitute but one
instrument.
19. Headings. All headings in this Agreement are for convenience
only and are not intended to affect the meaning of any provision hereof.
20. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the Company, its successors and assigns and any
business entity with which the Company merges or consolidates or to which the
Company sells all or substantially all of its assets, and upon Executive and his
executors, administrators, heirs and legal representatives.
IN WITNESS WHEREOF, Executive has executed this Agreement and the
Company has caused this Agreement to be executed by a duly authorized officer as
of the day and year first above written.
SEROLOGICALS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
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