EXHIBIT 10.33
[APPLIED BIOSCIENCE]
[INTERNATIONAL INC.]
[LOGO]
September 14, 1993
Mr. Stephen L. Waechter
Chief Financial Officer
Applied Bioscience International Inc.
4350 North Fairfax Drive, Suite 300
Arlington, Virginia 22203
Dear Steve:
APPLIED BIOSCIENCE INTERNATIONAL INC. (the "Company")
considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best
interests of the Company and its shareholders. In this
connection, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a change in
control may exist 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 shareholders. Accordingly, the
Company's Board of Directors has determined that should the
Company become subject to any proposed or threatened change in
the control of the Company, it is imperative that the Company and
the Board of Directors be able to rely upon you to remain in your
position and to provide advice, if requested, as to the best
interests of the Company.
In order to induce you to remain in the employ of the
Company, this letter agreement sets forth the severance benefits
which the Company agrees will be provided to you in the event
your employment with the Company is terminated subsequent to a
"change in control of the Company" (as defined in Section 1
hereof) under the circumstances described below.
1. CHANGE IN CONTROL. No benefits shall be payable
hereunder unless there shall have been a change in control of the
Company, as set forth below, and your employment by the Company
shall thereafter have been terminated in accordance with Section
3 below. For purposes of this Agreement, a "change in control of
the Company" shall mean a change in control of a nature that
would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act"); provided that,
without limitation, such a change in control shall be deemed to
4350 North Fairfax Drive * Arlington, VA 22203 Tel: (703) 516-2490
Fax: (703) 516-2494
Mr. Stephen L. Waechter
September 14, 1993
Page 2
have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes
the beneficial owner, 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; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute 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
shareholders, of each new director was approved by a vote of at
lease two-thirds of the directors then still in office who were
directors at the beginning of the period.
2. TERMINATION FOLLOWING CHANGE IN CONTROL.
(a) If any of the events described in Section 1 hereof
constituting a change in control of the Company shall have
occurred, you shall be entitled to the benefits provided in
Section 3 hereof if the Company subsequently terminates your
employment unless (i) such termination is (A) because of your
death or (B) by the Company for Disability; or (ii) such
termination is (A) by the Company and occurs more than one (1)
year subsequent to the date of such change of control or (B) you
unilaterally terminate your employment after a change in control.
(b) "Disability" as used herein means that as a result
of your incapacity due to physical or mental illness, you shall
have been absent from your duties with the Company on a full-time
basis for one hundred eighty (180) consecutive days (or for
shorter period aggregating not less than one hundred eighty (180)
days during any period of twelve (12) months).
3. COMPENSATION UPON TERMINATION. If, within the first
year following a change of control, the Company shall terminate
your employment other than pursuant to the reasons set forth in
paragraph 2(a) hereof, then the Company shall be obligated to
continue to pay to you as severance pay, the following amounts:
(a) your full base salary together with benefits
through the one year anniversary of the change of control at the
rate in effect at the time of your termination;
(b) all stock options granted to you under the
Company's stock option plans prior to such termination shall vest
Mr. Stephen L. Waechter
September 14, 1993
Page 3
as of the date of such termination and you will have the right,
for a period of one hundred eighty (180) days following such
termination, to exercise all such stock options which have not
expired.
4. LAPSE. Should you voluntarily leave employment (other
than after a change in control as provided in Paragraph 3) this
Agreement shall lapse and be of no other force and effect and no
compensation will be payable to you hereunder.
5. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/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 it if no such succession had
taken place.
(b) This Agreement shall inure to the benefit of
and be enforceable by your personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees.
6. NOTICE. For the purposes of this Agreement, notices
and all other communications provided for in the Agreement shall
be in writing and shall be deemed to have been duly given when
delivered or mailed by registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth
on the first page of this Agreement, provided that all notices to
the Company shall be directed to the attention of the Chief
Executive Officer of the Company with a copy of the Secretary of
the Company, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except
that notices of change of address shall be effective only upon
receipt.
7. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing signed by you and such
officer as may be specifically designated by the Board of
Directors of the Company. No waiver by either party hereto at
any time of any breach by the party hereto of, or compliance
with, any condition or provision of this Agreement to be
Mr. Stephen L. Waechter
September 14, 1993
Page 4
performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any
prior or subsequent time. 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 set
forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed
by the laws of the State of Delaware.
8. VALIDITY. The invalidity or unenforceability of any
provisions of this Agreement shall not effect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the
same instrument.
If this letter correctly sets forth our agreement on the
subject matter hereof, kindly sign and return to the Company the
enclosed copy of this letter which will then constitute our
agreement on this subject.
Sincerely,
APPLIED BIOSCIENCE INTERNATIONAL
INC.
By: /s/ Grover C. Wrenn
-----------------------
Grover C. Wrenn
Chief Executive Officer
Agreed to this 16th day of
September, 1993.
/s/ Stephen L. Waechter
------------------------
Stephen L. Waechter