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EXHIBIT 10.29
CONTROL CHANGE AGREEMENT
THIS CONTROL CHANGE AGREEMENT ("Agreement"), made as of the ______ day
of _________________, ______, by and between CONSEP, INC., an Oregon
corporation, with its principal office at 000 X.X. Xxxxxxxx Xxxxxx, Xxxx, Xxxxxx
00000 ("Company"), and [name, address] ("Employee").
RECITALS:
Employee has been a valued employee of the Company since _____ and is an
experienced manager of the Company's business. The Company believes that
Employee's continued employment by the Company enhances shareholder value and
will contribute to the Company's future success. Accordingly, the Company wishes
to give the Employee certain assurances concerning change in control of the
Company.
AGREEMENT:
The parties therefore agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms have
the definitions set forth below:
a. "CHANGE IN CONTROL" means the occurrence on or before December 31,
1999 of any one of the following events: (i) any Person becomes the beneficial
owner of twenty percent (20%) or more of the total number of voting shares of
the Company; (ii) the shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting shares 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) at least fifty percent (50%) of the total voting power represented by
the voting shares of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the shareholders of the
Company approve an agreement for the sale or disposition by the Company of all
or substantially all the Company's assets; or (iii) as the result of, or
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in connection with, any cash tender or exchange offer, merger, or other business
combination, sale of assets or any combination of the foregoing transactions,
the persons who were directors of the Company before such transactions cease to
constitute at least two-thirds (2/3) of the board of directors of the Company or
any successor entity.
b. "MATERIAL ADVERSE CHANGE IN EMPLOYMENT" means:
(1) Without Employee's express written consent, any assignment of
duties inconsistent with Employee's position immediately prior to a Change in
Control, or a change in Employee's reporting responsibilities, titles or offices
as in effect immediately prior to a Change in Control, or any removal of
Employee from or any failure to reelect or reappoint Employee to Employee's
position immediately prior to a Change in Control, except (a) in connection with
Employee's termination for Cause or as a result of Employee's death or
Disability, (b) pursuant to an order of a court of competent jurisdiction, or
(c) upon Employee's retirement under a retirement plan of the Company; or
(2) A reduction of Employee's aggregate base salary from the
Company following a Change in Control; or
(3) The relocation of the office at which Employee regularly
performs Employee's duties for the Company which relocation is not consented to
by Employee and which relocation requires Employee to be based anywhere other
than the principal executive office of the Company or its successors and
assigns.
c. "PERSON" means any individual, corporation, partnership, trust,
association, joint venture, pool, syndicate, unincorporated organization,
joint-stock company or similar organization or group acting in concert, but does
not include any employee stock ownership plan or similar employee benefit plan
of the Company. A "Person" shall be deemed to be a beneficial owner as that term
is used in Rule 13d-3 under the Securities Exchange Act of 1934.
d. "CAUSE" means the occurrence of one or more of the following events:
(1) Employee's wilful failure or refusal to comply with the
reasonable and lawful policies, standards or regulations from time to time
established by the Company, and Employee's failure to correct such failure or
refusal within thirty (30)
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days following notice from the Company specifying the nature of such failure or
refusal; or
(2) Employee engages in criminal conduct or engages in conduct
with respect to the Company that is dishonest, fraudulent or materially
detrimental to the reputation, character or standing of the Company.
e. "DISABILITY" means the inability of Employee to perform his or her
assigned duties to the Company because of physical or mental incapacity for a
continuous period of four (4) months, as reasonably determined by the Board of
Directors of the Company after consultation with a qualified physician selected
by the Board of Directors.
2. Severance Compensation.
a. Upon Employee's termination of employment, whether voluntary
or involuntary, following both a Change in Control and a Material Adverse Change
in Employment; provided the termination of employment occurs within two (2)
years following the Change in Control, the Company shall provide severance
compensation and benefits as follows:
(1) The Company shall pay Employee an amount equal to two
(2) years of Employee's salary calculated with reference to Employee's salary
(excluding bonuses) for the calendar year immediately preceding termination; and
(2) The Company shall, at its sole expense, for a period
of two (2) years following the date of termination provide Employee with
medical, dental, Disability and life insurance benefits equivalent to the
benefits plans and programs available to Employee through the Company as of the
date of termination.
b. Amounts payable pursuant to paragraph a.(1) of this Section
shall not bear interest and shall be paid in twenty-four (24) equal monthly
installments commencing thirty (30) days following the date of termination.
Amounts payable under this Section shall be net of amounts required to be
withheld under applicable law and amounts requested to be withheld by Employee.
c. Upon Employee's termination for Cause or due to death or
disability, or voluntary or involuntary termination under any circumstances
other than
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those described in subsection a. of this Section 2, Employee shall not be
entitled to the compensation and benefits described in this Section 2.
3. NOTICE. Unless otherwise provided herein, any notice, request,
certificate or instrument required or permitted under this Agreement shall be in
writing and shall be deemed "given" upon personal delivery to the party to be
notified or three business days after deposit with the United States Postal
Service, by registered or certified mail, addressed to the party to receive
notice at the address set forth above, postage prepaid. Either party may change
its address by notice to the other party given in the manner set forth in this
Section.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and contains all the agreements between them with respect to
the subject matter hereof. It also supersedes any and all other agreements or
contracts, either oral or written, between the parties with respect to the
subject matter hereof.
5. MODIFICATION. Except as otherwise specifically provided, the terms
and conditions of this Agreement may be amended at any time by mutual agreement
of the parties, provided that before any amendment shall be valid or effective,
it shall have been reduced to writing and signed by an authorized representative
of the Company and Employee.
6. NO WAIVER. The failure of any party hereto exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations, shall not be a waiver by such party of its right to exercise
any such or other right, power or remedy or to demand compliance.
7. SEVERABILITY. In the event that any paragraph or provision of this
Agreement shall be held to be illegal or unenforceable, such paragraph or
provision shall be severed from this Agreement and the entire Agreement shall
not fail as a result, but shall otherwise remain in full force and effect.
8. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns, and shall be binding upon
Employee, his administrators, executors, legatees, and heirs. Employee shall not
assign this Agreement.
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9. DISPUTE RESOLUTION. The Company and Employee agree that any dispute
between Employee and the Company or its officers, directors, employees, or
agents in their individual or Company capacity relating to the interpretation,
enforcement or breach of this Agreement, shall be submitted to a mediator for
non-binding, confidential mediation. If the matter cannot be resolved with the
aid of the mediator, the Company and Employee mutually agree to arbitration of
the dispute. The arbitration shall be in accordance with the then-current
Employment Dispute Resolution Rules of the American Arbitration Association
("AAA") before an arbitrator who is licensed to practice law in the State of
Oregon. The arbitration shall take place in or near Portland, Oregon. The
prevailing party in such arbitration, including any appeals thereon, shall be
awarded reasonable attorneys' fees and costs, including expenses associated with
the taking of depositions and the hiring of expert witnesses.
The Company and Employee agree that the procedures outlined in this
provision are the exclusive method of dispute resolution.
10. APPLICABLE LAW. This Agreement shall be construed and enforced under
and in accordance with the laws of the State of Oregon.
11. COUNTERPARTS. This Agreement may be signed in two counterparts, each
of which shall be deemed an original and both of which shall together constitute
one agreement.
IN WITNESS WHEREOF, Consep, Inc. has caused this Agreement to be signed
by its duly authorized representative, and Employee has hereunder set his name
as of the date of this Agreement.
COMPANY: CONSEP, INC.
By:
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EMPLOYEE: ----------------------------------------
NAME
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