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Exhibit
10.48
CHANGE OF CONTROL
EMPLOYMENT
AGREEMENT
AGREEMENT by and between
Kewaunee Scientific Corporation, a Delaware corporation (the
“Company”) and K. Bain Black (the
“Executive”), dated as of the 5 th day of December 2007.
The Board of Directors of the
Company (the “Board”) has determined that it is in the
best interests of the Company and its stockholders to assure that
the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below) of the Company. The Board believes it
is imperative to diminish the distraction of the Executive by
virtue of the personal uncertainties and risks created by a pending
or threatened Change of Control and to encourage the
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that
the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives
the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS
FOLLOWS:
1. Change of Control
Date . (a) The “Change of Control Date” shall
mean the first date during the term of this Agreement on which a
Change of Control (as defined in Section 2) occurs. Anything
in this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Executive’s employment with the
Company is terminated prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated
to effect a Change of Control or (ii) otherwise arose in
connection with or in anticipation of a Change of Control, then for
all purposes of this Agreement the “Change of Control
Date” shall mean the date immediately prior to the date of
such termination of employment.
(b) The term of this
Agreement shall commence on the date hereof and, if no Change of
Control Date occurs, shall end on November 12, 2008, subject
to extension by mutual agreement of the parties. If a Change of
Control Date occurs on or before such date, the term of this
Agreement shall end on the later of the last day of the Employment
Period as defined in Section 3 (whether such date is prior to
or after such third anniversary) or the end of the Protection
Period as defined in Section 6.
2. Change of Control .
For the purpose of this Agreement, a “Change of
Control” shall mean:
(a) The consummation of a
transaction in which the Company is merged, consolidated or
reorganized into or with another corporation or other
legal
entity, if as a result of such
transaction less than 50% of the outstanding voting securities or
other capital interests of the surviving, resulting or acquiring
entity are owned in the aggregate, directly or indirectly, by the
stockholders of the Company immediately prior to such transaction;
or
(b) The sale or exchange of
more than 50% of the outstanding shares of common stock of the
Company pursuant to an offer made generally for the acquisition of
the common stock of the Company, unless as a result of such
exchange at least 50% of the outstanding voting securities or other
capital interests of the acquiring entity are owned in the
aggregate, directly or indirectly, by the stockholders of the
Company immediately prior to such transaction; or
(c) The sale by the Company
of all or substantially all of its business and/or assets to any
other corporation or other legal entity, if less than 50% of the
outstanding voting securities or other capital interests of the
acquiring entity are owned in the aggregate, directly or
indirectly, by the persons who were stockholders of the Company
immediately before or after such date; or
(d) A change in the
membership of the Board such that the persons who were members of
the Board on the date of this Agreement (the “Original
Directors”) cease to constitute at least a majority of the
Board. For this purpose, any person whose election, or nomination
for election by the stockholders, is approved by a vote of at least
two-thirds of the Original Directors who are still in office shall
be considered an Original Director for all purposes (including
approving the election or nomination of subsequent
directors).
(e) Approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company.
3. Employment Period .
The Company hereby agrees to continue the Executive in its employ,
subject to the terms and conditions of this Agreement, for the
period (the “Employment Period”) commencing on the
Change of Control Date and ending on the third anniversary of such
date, unless sooner terminated pursuant to
Section 5.
4. Terms of Employment
. (a) Position and Duties.
(i) During the Employment
Period, (A) the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned to the Executive at any time during the 120-day period
immediately preceding the Change of Control Date and (B) the
Executive’s services shall be performed within the
Statesville/Charlotte, North Carolina, area, unless he otherwise
consents. Subject to the foregoing, the Executive may be
transferred to the payroll of an entity that is controlled by, or
controls, the Company, and in such event the term
“Company” shall be deemed to include such
entity.
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(ii) During the Employment
Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive agrees to devote his
attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use
the Executive’s reasonable best efforts to perform faithfully
and efficiently such responsibilities. It shall not be a violation
of this Agreement for the Executive to (A) serve on corporate,
civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as
such activities do not significantly interfere with the performance
of the Executive’s responsibilities as an employee of the
Company in accordance with this Agreement.
(b) Compensation.
(i) Base Salary. During
the Employment Period, the Executive shall receive an annual base
salary (“Annual Base Salary”), which shall be paid at a
monthly rate, at least equal to twelve times the highest monthly
base salary paid or payable, including any base salary which has
been earned but deferred, to the Executive by the Company in
respect of the twelve-month period immediately preceding the month
in which the Change of Control Date occurs. During the Employment
Period, the Annual Base Salary shall be reviewed no more than 12
months after the last salary increase awarded to the Executive
prior to the Change of Control Date and thereafter at least
annually. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any such
increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so
increased.
(ii) Annual Bonus. In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year ending during the Employment Period, an annual
bonus (the “Annual Bonus”) in cash at least equal to
the average of the Executive’s bonus under the
Company’s annual incentive bonus plan or any comparable bonus
under any predecessor or successor plan, for the last three full
fiscal years prior to the Change of Control Date (annualized in the
event that the Executive was not employed by the Company for the
whole of such fiscal year) (the “Average Annual
Bonus”). Each such Annual Bonus shall be paid no later than
the end of the second month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual
Bonus.
(iii) Incentive, Savings and
Retirement Plans. During the Employment Period, the Executive shall
be entitled to participate in all incentive, stock option, savings
and retirement plans, practices, policies and programs applicable
generally to other peer executives of the Company but in no event
shall such plans, practices, policies and programs provide the
Executive with incentive opportunities, savings opportunities and
retirement benefit opportunities, in each case, less favorable than
the most favorable of those provided by the Company for the
Executive under such plans, practices, policies and programs as in
effect at any time during the 120-day
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period immediately preceding the Change
of Control Date, except that the foregoing shall not be construed
to require the Company to provide stock options if the Company does
not maintain a stock option plan following the Change of Control,
and benefits may be reduced under a tax qualified plan if
substitute benefits are provided under a nonqualified
plan.
(iv) Welfare Benefit Plans.
During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the
Company but in no event shall such plans, practices, policies and
programs provide the Executive with benefits which are less
favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect for the Executive at any
time during the 120-day period immediately preceding the Change of
Control Date.
(v) Expenses. During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the policies, practices and procedures
of the Company in effect for the Executive at any time during the
120-day period immediately preceding the Change of Control
Date.
(vi) Fringe Benefits. During
the Employment Period, the Executive shall be entitled to fringe
benefits, in accordance with the most favorable plans, practices,
programs and policies of the Company in effect for the Executive at
any time during the 120-day period immediately preceding the Change
of Control Date.
(vii) Office and Support
Staff. During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to personal secretarial and other
assistance, at least equal to those provided to the Executive by
the Company at any time during the 120-day period immediately
preceding the Change of Control Date.
(viii) Vacation. During the
Employment Period, the Executive shall be entitled to paid
vacations in accordance with the plans, policies, programs and
practices of the Company at least as favorable as those in effect
for the Executive at any time during the 120-day period immediately
preceding the Change of Control Date.
5. Termination of
Employment . (a) Disability. If the Company determines in
good faith that Disability of the Executive has occurred during the
Employment Period (pursuant to the definition of Disability set
forth below), it may give to the Executive written notice in
accordance with Section 11(b) of this Agreement of its
intention to terminate the Executive’s employment. In such
event, the Executive’s employment with the Company shall
terminate effective on the 30th day after receipt of such notice by
the Executive (the “Disability Effective Date”),
provided that, within the 30 days after such
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receipt, the Executive shall not have
returned to full-time performance of the Executive’s duties.
For purposes of this Agreement, “Disability” shall mean
the absence of the Executive from the Executive’s duties with
the Company on a full-time basis for 180 consecutive days as a
result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by the
Company or its insurers and reasonably acceptable to the Executive
or the Executive’s legal representative.
(b) Cause. The Company may
terminate the Executive’s employment during the Employment
Period for Cause. For purposes of this Agreement,
“Cause” shall mean:
(i) the willful and continued
failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief
Executive Officer of the Company which specifically identifies the
manner in which the Board or Chief Executive Officer believes that
the Executive has not substantially performed the Executive’s
duties, or
(ii) the willful engaging by
the Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company.
For purposes of this provision, no act
or failure to act on the part of the Executive, shall be considered
“willful” unless it is done, or omitted to be done, by
the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of
the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive
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