EXHIBIT 10.2
CHANGE OF CONTROL AGREEMENT
AGREEMENT made on December 24, 1998, by and between Donlar Corporation,an
Illinois corporation (the "Company") and Xxxxxx X. Xxxxxxxxxxx (the
"Executive").
Recitals
A. The Executive is currently employed by the Company as Vice President.
B. The Executive and the Company desire to enter into a Change of Control
Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements herein set forth
and for good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Term of Agreement. Subject to the provisions of paragraphs 2 and 3 of
this Agreement, the term of this Agreement (the "Time Term") shall initially be
for the period which commences on the date hereof and which terminates at 11:59
p.m., local time, on the five (5) year anniversary of the date hereof.
2. Definitions. For purposes of this Agreement, the following definitions
apply:
(a) "Cause" shall mean: (i) an act or acts of personal dishonesty by
Executive which results in substantial personal enrichment of Executive at the
expense of the Company; (ii) violation by Executive of Executive's obligations
under paragraphs 6 or 7 of this Agreement which are willful on the Executive's
part and which are not remedied to the reasonable satisfaction of the Company in
a reasonable period of time after receipt of written notice from the Company; or
(iii) the conviction of the Executive of a felony. Any termination of this
Agreement for Cause shall be communicated by the Company to the Executive in a
notice of termination which shall set forth in reasonable detail the facts and
circumstances, if any, claimed to provide a basis for termination of this
Agreement.
(b) "Change of Control" shall mean the occurrence of any of the
following events:
(i) The "Beneficial Ownership" of securities representing more than
fifteen percent (15%) of the combined voting power of the Company is acquired,
in any type of transfer or acquisition including, but not limited to, the
exercise of any warrant or option, by any "person" as defined in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (other than the
Company, any trustees or other fiduciary holding securities under an employee
benefit plan of the Company, or 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); or
(ii) The stockholders of the Company approve a definitive agreement
to merge or consolidate the Company with or into another corporation or to sell
or otherwise dispose of all or substantially all of its assets, or its patents,
or adopt a plan of liquidation; or
(iii) During any period of three consecutive years, the number of
board of director seats is increased, or individuals who at the beginning of
such period were members of the Board of Directors of the Company (the "Board")
cease for any reason to constitute at least a majority thereof (unless the
election, or the nomination for election by the Company's stockholders, of each
new director was approved by a vote of at least a majority of the directors then
still in office who were directors at the beginning of such period or whose
election or nomination was previously so approved).
(c) A resignation for "Good Reason" shall mean the resignation of the
Executive from employment by the Company after: (i) a material reduction or
adverse alteration in the nature of this Executive's position, responsibilities
or authorities; (ii) the Executive becoming the holder of a lesser office or
title than that held by him immediately prior to such change; (iii) any material
reduction of the Executive's compensation or benefits; (iv) the relocation of
the Executive's job more than fifty (50) miles from his present location; or (v)
any other material adverse change to the terms and conditions of the Executive's
employment or benefits, provided that, if the Executive shall consent in writing
to any event described in clauses (i) through (v) of this sentence, the
Executive's subsequent resignation shall not be treated as a resignation for
Good Reason, unless a subsequent event described in such clauses to which
Executive did not consent occurs.
(d) "Permanent Disability" shall mean any physical or mental disability
which shall have rendered Executive unable to perform his duties hereunder for
120 consecutive days, or which, in the opinion of a licensed physician
reasonably satisfactory to the company, is likely to render Executive unable to
perform his duties hereunder for such 120 consecutive days period.
(e) "Retirement" shall mean a termination of the Executive's employment
other than for Cause on or after the Executive attainment of age sixty-five
(65).
3. Severance Benefit. If, during the term of this Agreement, either, (a) a
Change of Control occurs and within the time period commencing twelve (12)
months preceding the date of such Change of Control and terminating thirty-six
(36) months following the date of such Change of Control, the Executive's
employment with the Company and its subsidiaries is terminated by the Company
other than for Cause or on account of the Executive's death, Permanent
Disability or Retirement (a "Type A Termination"); or (b) a Change of Control
occurs and within a period of two (2) years from the date of such Change of
Control, the Executive resigns for Good Reason (a "Type B Termination"), then
the Company shall pay to the Executive a severance payment (the "Severance
Payment") in an amount equal to the aggregate value of: (I) an amount equal to
the product of 2.9 multiplied by the total of the Executive's annual salary,
inclusive of any elective deferrals made by the Executive to the Company's
401(k) Plan, if any, for the year in which termination occurs (the "Termination
Year"); (II) an amount equal to any employer matching contributions the Company
would have otherwise made on the Executive's behalf to the Company's 401(k) Plan
during the twelve (12) months following the Executive's date of termination, had
the Executive employment and/or the amounts contributed thereto by the
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Company on the Executive's behalf not been reduced or terminated, and assuming
Executive made elective deferrals to the maximum extent permitted by Section
402(g) of the Internal Revenue Code of 1986, as amended (the "Code") plus an
amount equal to any non-vested matching contributions under the Company's 401(k)
Plan which are otherwise forfeited by the Executive; and (III) an amount equal
to Executive's earned or target bonus, whichever is greater, for the Termination
Year multiplied by the portion of the Termination Year during which the
Executive was employed by the Company. The Severance Payment shall be payable in
a single lump sum which shall be paid within thirty (30) days of the termination
of employment or resignation.
If an Executive is eligible to receive the Severance Payment, in addition
to the Severance Payment, the Company shall provide health, disability and life
insurance in accordance with the plans maintained by the Company for executives
for a period of one (1) year from the date of termination of the Executive's
employment, provided that health, disability and life insurance benefits shall
cease if Executive becomes employed during such period and receives similar
benefits in connection with such employment. Furthermore, the Company shall
provide the Executive, upon either a Type A Termination or Type B Termination,
as described in the above paragraph, with the option to assume the lease,
subject to approval by the lessor, of the automobile on which the Company has
been making payments, prior to such termination for the benefit of the
Executive.
4. Acceleration of Stock Options. If a Change of Control of the Company
shall occur or the Executive resigns for Good Reason, then, without any action
by the Board, all outstanding stock options, which the Executive then holds to
acquire securities from the Company, shall accelerate and become fully vested,
immediately exercisable in full and shall remain exercisable during the
remaining time period as determined pursuant to the terms of the Company's Stock
Option Plans, regardless of whether or not the Executive remains in the employ
or service of the Company.
5. No Reductions or Mitigation. The amounts payable pursuant to paragraph 3
of this Agreement shall be paid without reduction, other than as provided in
said paragraph, regardless of any amounts of salary, compensation or other
amounts which may be paid or payable to the Executive from any source or which
the Executive could have obtained upon seeking other employment; provided that
the Company shall be permitted to make all such payments net of any legally
required tax withholdings.
6. Non-Competition. The Executive agrees that (i) during his employment and
(ii) if during the term of this Agreement, a Change of Control occurs and during
the period commencing with the date of such Change of Control, the Executive's
employment with the Company and its subsidiaries is voluntarily terminated by
the Executive other than for Good Reason, then for a period of one (1) years
after the termination of his employment for any reason, the Executive shall not
enter into or engage in or be connected with, or engage to work for an
individual, firm or corporation which is engaged in or connected with, any
business which is then in substantial competition with the Company in the United
States. The provisions of the last preceding sentence shall not apply to the
ownership of less than 5% of the shares of any
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corporation listed on any recognized exchange or traded over-the-counter. The
provisions of this paragraph shall survive a termination of this Agreement.
7. Non-Disclosure. The Executive agrees not to disclose either during the
period of his employment or at any time thereafter to any person, firm or
corporation, any proprietary information concerning the business or affairs of
the Company which he may have acquired in the course of, or as incident to, his
employment with the Company for his own benefit or to the detriment or intended
detriment of the Company. The provisions of this paragraph shall survive a
termination of this Agreement.
8. Binding Effect; Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and the Executive's heirs and
legal representatives and the Company's successors and assigns. This Agreement
is assignable by the Company to any corporate or other entity which acquires,
directly or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets of the Company. Upon such assignment, and the
assumption by the assignee of all obligations hereunder, the Company shall be
released from all liability hereunder. This Agreement shall not be assignable by
the Executive.
9. Nonalienation of Benefits. Benefits payable under this Agreement shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind, either voluntary or involuntary, prior to actually being received by the
Executive; and any attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge, garnish, execute on, levy or otherwise dispose of any
right to benefits payable hereunder, shall be void.
10. Internal Revenue Code Limits and Other Limits.
(a) The Company shall engage its auditors to review payments made under
this Agreement to determine whether they constitute "excess parachute payments".
Notwithstanding anything in this Agreement to the contrary, in the event that
the Company's auditors or any other independent auditors substituted for the
Company's auditors pursuant to an agreement in writing by and between the
Company and the Executive (the "Auditor") determine that any payment by the
Company to or for the benefit of the Executive, whether paid or payable pursuant
to the terms of this Agreement or otherwise (a "Payment"), would be an "excess
parachute payment" within the meaning of Section 280G of the Code, then the
Company shall pay an additional amount of money to the Executive that will equal
(based on the Executive's good faith representations of the Executive's income
tax position for the year of payment hereunder) the sum of (i) all excise tax
imposed on the Executive by Section 4999 of the Code and (ii) all additional
state and federal income taxes attributable to the additional payments to the
Executive pursuant to this Section 9(a), including all state and federal income
taxes on the additional income tax payments hereunder ("Additional Payment").
(b) If the Auditor determines that any Payment would be such an "excess
parachute payment" because of Section 280G of the Code, then the Company shall
promptly give the Executive notice to that effect and a copy of the detailed
calculation thereof and the Executive shall provide in writing within ten (10)
days of the Executive's receipt of such notice,
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a good faith representation of the Executive's income tax position so that such
Additional Payment may be calculated. All determinations made by the Auditor
under this Section 10 shall be binding upon the Company and the Executive and
shall be made within sixty (60) calendar days of the Executive's termination of
employment. Following such determination and the notices hereunder and subject
to the other conditions set forth in this Section 10, the Company shall pay to
or distribute to, or for the benefit of, the Executive, such amounts as are then
due to the Executive under this Agreement in the manner identified in Section 3
and this Section 10 of this Agreement, and shall promptly pay to or distribute
for the benefit of the Executive in the future such amounts as become due to the
Executive under this Agreement.
(c) As a result of the uncertainty in the application of Section 280G of
the Code at the time of the initial determination by the Auditor hereunder, it
is possible that an Additional Payment will have been made by the Company which
should not have been made (an "Overpayment"), or that an increase in the
Additional Payment which will not have been made by the Company could have been
made (an "Underpayment"), consistent in each case with the calculation of such
excess parachute payment hereunder. In the event that the Auditor, based upon
the assertion of a deficiency by the Internal Revenue Service against the
Company or the Executive which the Auditor believes has a high probability of
success, determines that an Overpayment has been made, such Overpayment shall be
treated for all purposes as a loan to the Executive which the Executive shall
repay to the Company, together with interest at the applicable federal rate
provided for in Section 7872(f)(2)(A) of the Code. In the event that the
Auditor, based upon controlling precedent, determines that an Underpayment has
occurred, such Underpayment shall promptly be paid by the Company to or for the
benefit of the Executive, together with interest at the applicable federal rate
provided in Section 7872(f)(2)(A) of the Code.
11. Severability. If all or any part of this Agreement is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any paragraph or part of a paragraph so
declared to be unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such paragraph or part of a paragraph to
the fullest extent possible while remaining lawful and valid.
12. Entire Agreement; Amendment; Waiver. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersedes all prior or contemporaneous oral or written
negotiations, understandings and agreements between the parties hereto. This
Agreement shall not be altered, amended or modified except by written instrument
executed by the Company and Executive. A waiver of any term, covenant, agreement
or condition contained in this Agreement shall not be deemed a waiver of any
other term, covenant, agreement or condition, and any waiver of any default in
any such term, covenant, agreement or condition shall not be deemed a waiver of
any later default thereof or of any other term, covenant, agreement or
condition.
13. Notices. All notices required by this Agreement shall be in writing and
delivered by hand or by first class registered or certified mail, postage
prepaid.
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14. Legal Fees and Expenses. The Company is aware that upon the occurrence
of a Change in Control, the Board or a shareholder of the Company may then cause
or attempt to cause the Company to refuse to comply with its obligations under
this Agreement, or may cause or attempt to cause the Company to institute, or
may institute, litigation seeking to have this Agreement declared unenforceable,
or may take or attempt to take other action to deny the Executive the benefits
intended under this Agreement. In these circumstances, the purpose of this
Agreement could be frustrated. It is the intent of the Company that the
Executive not be required to incur the expenses associated with the enforcement
of the Executive's rights under this Agreement by litigation or other legal
action, nor that the Executive be bound to negotiate any settlement of the
Executive's rights hereunder, because the cost and expense of such legal action
or settlement would substantially detract from the benefits intended to be
extended to the Executive hereunder. Accordingly, if following a Change in
Control it should appear to the Executive that the Company has failed to comply
with any of its obligations under this Agreement or in the event that the
Company or any other person (including the Internal Revenue Service) takes any
action to declare this Agreement void or unenforceable, or institutes any
litigation or other legal action designed to deny, diminish or to recover from
the Executive the benefits entitled to be provided to the Executive hereunder,
and the Executive has complied with all of his obligations under this Agreement,
the Company irrevocably authorizes the Executive from time to time to retain
counsel of the Executive's choice, at the expense of the Company as provided in
this paragraph 14, to represent the Executive in connection with the initiation
or defense of any litigation or other legal action, whether such action is by or
against the Company or any director, officer, shareholder, or other person
affiliated with the Company, in any jurisdiction. Notwithstanding any existing
or prior attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to the Executive entering into an attorney-client
relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship shall exist between the
Executive and such counsel. The reasonable fees and expenses of counsel selected
from time to time by the Executive as herein above provided shall be paid or
reimbursed to the Executive by the Company on a regular, periodic basis upon
presentation by the Executive of a statement or statements prepared by such
counsel in accordance with its customary practices. Any legal expenses incurred
by the Company by reason of any dispute between the parties as to enforceability
of or the terms contained in this Agreement, notwithstanding the outcome of any
such dispute, shall be the sole responsibility of the Company, and the Company
shall not take action to seek reimbursement from the Executive for such
expenses.
15. Applicable Law. The provisions of this Agreement shall be interpreted
and construed in accordance with the laws of the State of Illinois, without
regard to its choice of law principles.
16. Extension. The Time Term shall be automatically extended for an
additional period of five (5) years if the Company does not give the Executive
written notice of termination of this Agreement two (2) years prior to the
expiration of the Time Term then in effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
DONLAR CORPORATION
By:
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Title:
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EXECUTIVE:
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