Exhibit 10(c) xxii
American Science & Engineering, Inc.
Change in Control & Severance Benefit Agreement
This is a SEVERANCE BENEFIT & CHANGE IN CONTROL Agreement (the "Agreement")
entered into between American Science & Engineering, Inc. (the "Company", which
term shall include any successor by merger, consolidation, sale of substantially
all of the Company's assets or otherwise) and Anthony Fabiano, Chief Executive
Officer ("Executive") effective as of the 3rd day of November, 2005 (the
"Effective Date").
1.
PURPOSE OF THIS AGREEMENT. THE COMPANY HEREBY AGREES TO PROVIDE
SEVERANCE AND CHANGE IN CONTROL BENEFITS TO EXECUTIVE ON THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT. THESE BENEFITS ARE IN LIEU OF ANY
BENEFITS THAT WOULD OTHERWISE BE PAYABLE TO EXECUTIVE UNDER THE SEVERANCE PAY
PLAN, IF ANY, MAINTAINED BY THE COMPANY FOR THE BENEFIT OF SENIOR EXECUTIVES OR
OTHER COMPANY EMPLOYEES, OR BY STATUTE. THIS SEVERANCE AGREEMENT DOES NOT
REPRESENT AN EMPLOYMENT CONTRACT FOR ANY DEFINITE TERM OR PERIOD, WHICH MEANS
THAT EITHER EXECUTIVE OR THE COMPANY CAN TERMINATE EXECUTIVE'S EMPLOYMENT AT ANY
TIME, FOR ANY REASON OR NO REASON, AND WITH OR WITHOUT NOTICE.
2.
TERM OF AGREEMENT. THE AGREEMENT SHALL BECOME EFFECTIVE ON THE
EFFECTIVE DATE AND SHALL TERMINATE ON MARCH 31, 2008; PROVIDED THAT THIS
AGREEMENT SHALL AUTOMATICALLY BE EXTENDED FOR SUCCESSIVE ONE YEAR TERMS UNLESS
THE BOARD PROVIDES EXECUTIVE WITH WRITTEN NOTICE TO THE CONTRARY AT LEAST THIRTY
(30) DAYS BEFORE THE DATE THE AGREEMENT WOULD OTHERWISE BE SO EXTENDED. SUCH
NOTICE, IN THE SOLE DISCRETION OF THE BOARD, MAY PROVIDE THAT THE TERM WILL NOT
BE EXTENDED IN THE FUTURE, AND/OR THAT THERE SHALL BE NO FURTHER AUTOMATIC
EXTENSIONS OF THE TERM.
3.
DEFINITIONS. THE FOLLOWING TERMS AS USED IN THIS AGREEMENT SHALL
HAVE THE FOLLOWING MEANINGS:
(A)
"AFFECTED AWARD" MEANS EACH STOCK-BASED AWARD HELD BY EXECUTIVE
IMMEDIATELY PRIOR TO A CHANGE IN CONTROL QUALIFYING TERMINATION.
(B)
"AFFILIATE" MEANS ANY BUSINESS ENTITY IN WHICH THE COMPANY HOLDS,
DIRECTLY OR INDIRECTLY, AN EQUITY, PROFITS, OR VOTING INTEREST OF 30% OR MORE,
AND INCLUDES ANY SUBSIDIARY.
(C)
"BASE SALARY" MEANS (I) THE HIGHEST ANNUAL RATE OF BASE SALARY
PAYABLE TO EXECUTIVE BY THE COMPANY DURING THE ONE-YEAR PERIOD ENDING ON
EXECUTIVE'S DATE OF TERMINATION OR (II) THE HIGHEST ANNUAL RATE OF BASE SALARY
PAYABLE TO EXECUTIVE BY THE COMPANY DURING THE ONE-YEAR PERIOD ENDING ON THE
CHANGE OF CONTROL, WHICHEVER IS HIGHER.
(D)
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
(E)
"CAUSE" MEANS, FOR PURPOSES OF THIS AGREEMENT, AS DETERMINED BY
THE BOARD IN ITS REASONABLE JUDGMENT: (I) EXECUTIVE'S FAILURE TO PERFORM (OTHER
THAN BY REASON
OF DISABILITY), OR MATERIAL NEGLIGENCE IN THE PERFORMANCE OF, HIS DUTIES AND
RESPONSIBILITIES TO THE COMPANY OR ANY OF ITS AFFILIATES; (II) MATERIAL BREACH
BY EXECUTIVE OF ANY PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT WITH THE
COMPANY OR ANY OF ITS AFFILIATES; (III) OTHER CONDUCT BY EXECUTIVE THAT COULD BE
HARMFUL TO THE BUSINESS, INTERESTS OR REPUTATION OF THE COMPANY OR ANY OF ITS
AFFILIATES; (IV) FRAUD,