CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement"), is made and
entered into this 9th day of June, 1996 by and between Embrex, Inc., including
its wholly-owned subsidiary, Embrex Europe Limited (hereinafter Embrex, Inc. and
Embrex Europe Limited are collectively referred to as "Company"), 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, Employee is currently a member of the key management of both
Embrex, Inc. and Embrex Europe Limited;
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 by Embrex
Europe Limited pursuant to an Employment Agreement dated April 1, 1994 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 (as such
term is hereinafter defined) 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 then outstanding; provided, however,
that
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if a Person shall become the Beneficial Owner of thirty-three percent (33%) or
more of the Common Stock, 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
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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 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
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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) "Common Stock" shall mean the common stock, $0.01 par
value per share, of Embrex, Inc.
(E) "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.
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(F) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity.
(G) "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.
(H) "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 merge with
and into, any other Person (other than a Subsidiary of the
Company), and the Company shall
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not be the continuing or surviving corporation of such
consolidation or merger; or
(ii) any Person (other than a 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,
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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.
(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;
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(iii) the Company's requiring the Employee to be
based at any place outside a 30 mile radius from Great Dunmow,
Essex, Great Britain, 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:
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(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 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
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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 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 the 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
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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
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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 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
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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.
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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/ Xxxxxxx X. Xxxxxxxx
ATTEST: Title: President and CEO
EMPLOYEE:
/s/ Xxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
Corporate Secretary Xxxxx X. Xxxxxx
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