Exhibit 10.23
AMENDMENT TO CHANGE IN CONTROL SEVERANCE AGREEMENT
This Amendment to Change in Control Severance Agreement ("Amendment"),
is made and entered into this the 1st day of October, 1998, by and between
Embrex, Inc. ("Company"), a North Carolina corporation, and Randall L. Marcuson
("Employee").
WHEREAS the Company and Employee are parties to a Change in Control
Severance Agreement dated May 21, 1996, a copy of which is attached hereto as
Exhibit A (the "Severance Agreement") whereby the Company agrees to provide
Employee with certain payments and benefits in the event that Employee's
employment with the Company is terminated as a result of, or in connection with,
a Change in Control; and
WHEREAS, the Company and Employee desire to amend the Severance
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, the legal sufficiency and adequacy of which are hereby acknowledged, the
parties agree to amend the Severance Agreement as follows:
1. The Severance Agreement is amended by adding the following
paragraphs:
16. Covenant Not to Compete. Employee acknowledges that by
virtue of his employment with the Company, he shall have access to and
control of confidential and proprietary information concerning the
Company's business and that the Company's business depends, to a
considerable extent, on the individual's skills, efforts, and leadership
of Employee. Accordingly, and in consideration of the Company's
commitments to Employee under this Agreement, Employee expressly
covenants and agrees that for the two (2) year period following the
termination of his employment with the Company (regardless of
circumstances of such termination) Employee will not, without the prior
consent of the Company:
(a) on Employee's own or another's behalf, whether as an officer,
director, stockholder, partner, associate, owner, employee,
consultant, or otherwise, directly or indirectly:
(i) within the geographical areas set forth below, solicit
or do business which is the same, similar to, or otherwise
in competition with the business engaged in by the Company
from or with persons or entities who are customers of the
Company, who were customers of the Company at any time
during the last year of Employee's employment with the
Company or to whom the Company had made proposals for
business at any time during the last year of Employee's
employment with the Company; or
(ii) offer employment to, or otherwise solicit for
employment, any employee or other person who had been
employed by the Company during the last year of
Employee's employment with the Company.
(b) within the geographical area set forth below, be employed (or
otherwise engaged) in a management capacity, other capacity
providing the same or similar services which Employee provided to
the Company, or any capacity connected with competitive business
activities by any person or entity that engages in the same,
similar, or otherwise competitive business as the Company;
(c) directly or indirectly take action which is primarily intended to
be materially detrimental to the Company's goodwill, name,
business relations, prospects, and operations.
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(d) the restrictions set forth in this Paragraph 16 apply to the
following geographical areas:
(i) Research Triangle Park, North Carolina;
(ii) any city, metropolitan area, county (or similar political
subdivisions in foreign countries) in which the Company is
located, or does, or during Employee's employment with the
Company, did business;
(iii) any city, metropolitan area, county (or similar political
subdivisions in foreign countries) in which Employee's
substantial services were provided, or for which Employee
had substantial responsibility, or in which Employee
performed substantial work on the Company's projects while
employed by the Company.
Employee acknowledges that the covenants contained in this
Paragraph 16 are reasonably necessary to protect the legitimate business
interests of the Company and are reasonable with respect to scope, time,
and territory and are described with sufficient accuracy and
definiteness to enable him to understand the scope of the restrictions
imposed upon him. If any of the provisions, clauses, or phrases in this
Paragraph 16 are held unenforceable by a court of competent
jurisdiction, then the parties desire that any such provision, clause or
phrase be "blue-penciled" or rewritten by the court to the extent
necessary to render it enforceable.
17. Income Tax Payment. In the event Employee receives payments
or benefits pursuant to Paragraph 5 of this Agreement and incurs state
or federal personal income tax liability as a result of the receipt of
such payments or benefits, then Employee is entitled to receive an
additional payment (the "Income Tax Payment") in an amount equal to the
state and federal personal income tax
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assessed on such payments or benefits. Said Income Tax Payment shall be
made prior to any calculation of the Excise Tax Payment required by
Paragraph 9 of this Agreement. Said Income Tax Payment shall be paid to
Employee by the Company by April 15 of the year following each year in
which such tax liability occurs.
2. Except as herein set forth, the Severance Agreement is not modified
or amended and the parties hereto reaffirm and agree to all of the terms
and provisions of the Severance Agreement, as amended, in all other
respects.
IN WITNESS WHEREOF, the parties have executed this Amendment to Change
in Control Severance Agreement as of the day and year first written above.
EMBREX, INC.
/s/ Randall L. Marcuson
By: ________________________________
President and CEO
Title: _____________________________
ATTEST:
/s/ Don T. Seaquist
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Corporate Secretary
/s/ Randall L. Marcuson
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Randall L. Marcuson