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Exhibit 10
EXECUTIVE SEVERANCE AGREEMENT
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AGREEMENT made as of the 8th day of August, 1995 by and between Instron
Corporation, a Massachusetts corporation with its principal place of business
in Canton, Massachusetts (the "Company"), and Xxxxx Xxxxxxxxxxx of 000
Xxxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (the "Executive").
1. PURPOSE. The Company considers it essential to the best interests of
its stockholders to xxxxxx the continuous employment of key management
personnel. The Board of Directors of the Company (the "Board") recognizes,
however, that, as is the case with many publicly held corporations, the
possibility of a Change in Control (as defined in Section 2 hereof) exists and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders. Therefore, the
Board has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the Company's
management, including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from
the possibility of a Change in Control. Nothing in this Agreement shall be
construed as creating an express or implied contract of employment and, except
as otherwise agreed in writing between the Executive and the Company, the
Executive shall not have any right to be retained in the employ of the Company.
2. CHANGE IN CONTROL. A "Change in Control" shall be deemed to have
occurred in any one of the following events:
(a) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934 (the "Act")) becomes a "beneficial owner"
(as such term is defined in Rule 13d-3 promulgated under the Act) (other than
the Company, any trustee 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), directly or
indirectly, of securities of the Company representing fifty percent (50%) or
more of the combined voting power of the Company's then outstanding securities;
(b) persons who, as of August 8, 1995, constituted the Company's Board
(the "Incumbent Board") cease for any reason, including without limitation as a
result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board, provided that any person becoming
a director of the Company subsequent to August 8, 1995 whose election was
approved by at least a majority of the directors then comprising the Incumbent
Board shall, for purposes of this Agreement, be considered a member of the
Incumbent Board;
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(c) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation or other entity, other than (a) 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 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which
no "person" (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
3. TERMINATING EVENT. A "Terminating Event" shall mean any of the
events provided in this Section 3 occurring subsequent to a Change in Control
as defined in Section 2:
(a) termination by the Company of the employment of the Executive with
the Company for any reason other than (A) a willful act of dishonesty by the
Executive with respect to any matter involving the Company or any subsidiary or
affiliate, or (B) conviction of the Executive of a crime involving moral
turpitude, or (C) the gross or willful failure by the Executive to
substantially perform the Executive's duties with the Company, or (D) the
failure by the Executive to perform his full-time duties with the Company by
reason of his death, disability or retirement; provided, however, that a
Terminating Event shall not be deemed to have occurred pursuant to this Section
3(a) solely as a result of the Executive being an employee of any direct or
indirect successor to the business or assets of the Company, rather than
continuing as an employee of the Company following a Change in Control. For
purposes of clauses (A) and (C) of this Section 3(a), no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive without reasonable belief that the Executive's
act, or failure to act, was in the best interest of the Company and its
subsidiaries and affiliates. For purposes of this Agreement, "disability"
shall mean the Executive's incapacity due to physical or mental illness which
has caused the Executive to be absent from the full-time performance of his
duties with the Company for a period of six (6) consecutive months if the
Company shall have given the Executive a Notice of Termination and, within
thirty (30) days after such Notice of Termination is given, the Executive shall
not have returned to the full-time performance of his duties. For purposes of
this Agreement, "retirement" shall mean termination of the Executive's
employment in accordance with the Company's retirement policy, not including
early retirement, generally applicable to its salaried employees, as in effect
immediately prior to the Change in Control, or in accordance with any
retirement arrangement established with respect to the Executive with the
Executive's express written consent;
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(b) termination by the Executive of the Executive's employment with the
Company for Good Reason. Good Reason shall mean the occurrence of any of the
following events:
(i) a substantial adverse change, not consented to by the Executive,
in the nature or scope of the Executive's responsibilities, authorities,
powers, functions or duties from the responsibilities, authorities, powers,
functions or duties exercised by the Executive immediately prior to the Change
in Control; or
(ii) a reduction in the Executive's annual base salary as in effect
on the date hereof or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all or substantially all
management employees; or
(iii) the relocation of the Company's offices at which the
Executive is principally employed immediately prior to the date of a Change in
Control to a location more than fifty (50) miles from such offices, or the
requirement by the Company for the Executive to be based anywhere other than
the Company's offices at such location, except for required travel on the
Company's business to an extent substantially consistent with the Executive's
business travel obligations immediately prior to the Change in Control; or
(iv) the failure by the Company to pay to the Executive any portion
of his compensation or to pay to the Executive any portion of an installment of
deferred compensation under any deferred compensation program of the Company
within fifteen (15) days of the date such compensation is due without prior
written consent of the Executive; or
(v) the failure by the Company to obtain an effective agreement from
any successor to assume and agree to perform this Agreement.
4. SEVERANCE PAYMENT. In the event a Terminating Event occurs within
twenty-four (24) months after a Change in Control,
(a) the Company shall pay to the Executive an amount equal to two (2)
times the "base amount" (as such term is defined in Section 280G(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code")) applicable to the
Executive (the "Base Amount"), payable in one lump-sum payment. Said amount
shall be paid no later than thirty-one (31) days following the Date of
Termination (as such term is defined in Section 8(b)); and
(b) the Company shall pay to the Executive all reasonable legal and
arbitration fees and expenses incurred by the Executive in successfully
obtaining or enforcing any right or benefit provided by this Agreement.
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5. LIMITATION ON BENEFITS.
(a) It is the intention of the Executive and of the Company that no
payments by the Company to or for the benefit of the Executive under this
Agreement or any other agreement or plan pursuant to which he is entitled to
receive payments or benefits shall be non-deductible to the Company by reason
of the operation of Section 280G of the Code relating to parachute payments.
Accordingly, and notwithstanding any other provision of this Agreement or any
such agreement or plan, if by reason of the operation of said Section 280G, any
such payments exceed the amount which can be deducted by the Company, the
payments which the Executive is entitled to receive under this Agreement shall
be reduced by that amount which exceeds the maximum amount deductible by the
Company under Section 280G. To the extent that payments exceeding such maximum
deductible amount have been made to or for the benefit of the Executive, such
excess payments shall be refunded to the Company with interest thereon at the
applicable federal rate determined under Section 1274(d) of the Code,
compounded annually, or at such other rate as may be required in order that no
such payments shall be non-deductible to the Company by reason of the operation
of said Section 280G.
(b) If any dispute between the Company and the Executive as to any of the
amounts to be determined under this Section 5, or the method of calculating
such amounts, cannot be resolved by the Company and the Executive, either the
Company or the Executive, after giving three (3) days' written notice to the
other, may refer the dispute to a partner in the Boston office of a firm of
independent certified public accountants selected jointly by the Company and
the Executive. The determination of such partner as to the amount to be
determined under Section 5(a) and the method of calculating such amounts shall
be final and binding on both the Company and the Executive. The Company shall
bear the costs of any such determination if the amount determined by such
partner differs to any material degree from the final amount proposed by the
Company to the Executive before submission to such partner. If there is no
such material difference, the costs of any such determination shall be evenly
divided between the Company and the Executive.
6. TERM. This Agreement shall take effect on the date first set forth
above and shall terminate upon the earlier of (a) the termination by the
Company of the employment of the Executive because of (A) a willful act of
dishonesty by the Executive with respect to any matter involving the Company or
any subsidiary or affiliate, or (B) conviction of the Executive of a crime
involving moral turpitude, or (C) the gross or willful failure by the Executive
to substantially perform the Executive's duties with the Company, or (D) the
failure by the Executive to perform his full-time duties with the Company by
reason of his death, disability (as defined in Section 3(a)) or retirement (as
defined in Section 3(a)), (b) the resignation or termination of the Executive
for any reason prior to a Change in Control, or (c) the resignation of the
Executive after a Change in Control for any reason other than the occurrence of
any of the events enumerated in Section 3(b)(i)-(v) of this Agreement.
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7. WITHHOLDING. All payments made by the Company under this Agreement
shall be net of any tax or other amounts required to be withheld by the Company
under applicable law.
8. NOTICE AND DATE OF TERMINATION; DISPUTES; ETC.
(a) NOTICE OF TERMINATION. After a Change in Control and during the term
of this Agreement, any purported termination of the Executive's employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other party hereto in accordance with
this Section 8. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and the Date of Termination. Further, a Notice of
Termination pursuant to one or more of clauses (A) through (C) of Section 3(a)
hereof is required to include a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire membership of
the Board at a meeting of the Board (after reasonable notice to the Executive
and an opportunity for the Executive, accompanied by the Executive's counsel,
to be heard before the Board) finding that, in the good faith opinion of the
Board, the termination met the criteria set forth in one or more of clauses (A)
through (C) of Section 3(a) hereof.
(b) DATE OF TERMINATION. "Date of Termination", with respect to any
purported termination of the Executive's employment after a Change in Control
and during the term of this Agreement, shall mean (i) if the Executive's
employment is terminated for disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to
the full-time performance of the Executive's duties during such thirty (30) day
period) and (ii) if the Executive's employment is terminated for any other
reason, the date specified in the Notice of Termination. In the case of a
termination by the Company other than a termination pursuant to one or more of
clauses (A) through (C) of Section 3(a) (which may be effective immediately),
the Date of Termination shall not be less than thirty (30) days after the
Notice of Termination is given. In the case of a termination by the Executive,
the Date of Termination shall not be less than fifteen (15) days from the date
such Notice of Termination is given. Notwithstanding Section 3(a) of this
Agreement, in the event that the Executive gives a Notice of Termination to the
Company, the Company may unilaterally accelerate the Date of Termination and
such acceleration shall not result in a Terminating Event for purposes of
Section 3(a) of this Agreement.
(c) NO MITIGATION. The Company agrees that, if the Executive's
employment by the Company is terminated during the term of this Agreement, the
Executive is not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive by the Company pursuant to Section
4(a) and (b) hereof. Further, the amount of any payment provided for in this
Agreement shall not be reduced by any compensation earned by the Executive as
the result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by the Executive to the Company or
otherwise.
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(d) SETTLEMENT AND ARBITRATION OF DISPUTES. Any controversy or claim
arising out of or relating to this Agreement or the breach thereof shall be
settled exclusively by arbitration in accordance with the laws of The
Commonwealth of Massachusetts by three arbitrators, one of whom shall be
appointed by the Company, one by the Executive and the third by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then the third arbitrator shall be appointed by the American
Arbitration Association in the City of Boston. Such arbitration shall be
conducted in the City of Boston in accordance with the rules of the American
Arbitration Association for commercial arbitrations, except with respect to the
selection of arbitrators which shall be as provided in this Section 8(d).
Judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
9. ASSIGNMENT; PRIOR AGREEMENTS. Neither the Company nor the Executive
may make any assignment of this Agreement or any interest herein, by operation
of law or otherwise, without the prior written consent of the other party, and
without such consent any attempted transfer shall be null and void and of no
effect. This Agreement shall inure to the benefit of and be binding upon the
Company and the Executive, their respective successors, executors,
administrators, heirs and permitted assigns. In the event of the Executive's
death after a Terminating Event but prior to the completion by the Company of
all payments due him under Section 4(a) and (b) of this Agreement, the Company
shall continue such payments to the Executive's beneficiary designated in
writing to the Company prior to his death (or to his estate, if the Executive
fails to make such designation).
10. ENFORCEABILITY. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
11. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
12. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid, to the
Executive at the last address the Executive has filed in writing with the
Company, or to the Company at its main office, attention of the Board of
Directors.
13. EFFECT ON OTHER PLANS. An election by the Executive to resign after
a Change in Control under the provisions of this Agreement shall not be deemed
a voluntary termination of
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employment by the Executive for the purpose for interpreting the provision for
any of the Company's benefit plans, programs or policies. Nothing in this
Agreement shall be construed to limit the rights of the Executive under the
Company's benefit plans, programs or policies except as otherwise provided in
Section 5 hereof, and except that the Executive shall have no rights to any
severance benefits under any severance pay plan.
14. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Company.
15. GOVERNING LAW. This is a Massachusetts contract and shall be
construed under and be governed in all respects by the laws of The Commonwealth
of Massachusetts.
16. OBLIGATIONS OF SUCCESSORS. In addition to any obligations imposed by
law upon any successor to the Company, the Company will use its best efforts to
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company 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 if no such succession had taken place.
17. CONFIDENTIAL INFORMATION. The Executive shall never use, publish or
disclose in a manner adverse to the Company's interests, any proprietary or
confidential information relating to (a) the business, operations or properties
of the Company or any subsidiary or other affiliate of the Company, or (b) any
materials, processes, business practices, technology, know-how, research,
programs, customer lists, customer requirements or other information used in
the manufacture, sale or marketing of any of the respective products or
services of the Company or any subsidiary or other affiliate of the Company;
provided, however, that no breach or alleged breach of this Section 17 shall
entitle the Company to fail to comply fully and in a timely manner with any
other provision hereof. Nothing in this Agreement shall preclude the Company
from seeking money damages, or equitable relief by injunction or otherwise
without the necessity of proving actual damage to the Company, for any breach
by the Executive hereunder.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company by its duly authorized officer, and by the Executive,
as of the date first above written.
INSTRON CORPORATION
By:_____________________
Name:
Title:
/s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
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