Change In Control Agreement Dated 1-29-1998

EXHIBIT 10.28


CHANGE IN CONTROL AGREEMENT


THIS AGREEMENT between WSMP, Inc., a North Carolina corporation (the "Company"), and L. Dent Miller (the "Employee") is dated as of January 29, 1998 (the "Effective Date").


W I T N E S S E T H:


WHEREAS, the Employee is a key employee of the Company, serving in an executive capacity at the Company, having acquired an intimate knowledge of the business and affairs of the Company's restaurants and having clearly demonstrated the ability to perform valuable services for the Company; and


WHEREAS, the Company considers it to be in the best interests of its shareholders to encourage the continued employment of key employees of the Company in that the continuity of management is essential to protecting and enhancing the best interests of the Company and its shareholders; and


WHEREAS, the Company believes that the possibility of the occurrence of a Change in Control of the Company (as defined below) may result in the termination of the Employee's employment by the Company or in the distraction of the Employee from the performance of his duties to the Company, in either case to the detriment of the Company and its shareholders; and


WHEREAS, the Company recognizes that the Employee could suffer adverse financial and professional consequences if a Change in Control of the Company were to occur; and


WHEREAS, the Company wishes to enter into this Agreement to protect the Employee in the event that a Change in Control of the Company were to occur, thereby encouraging the Employee to remain with the Company and not be distracted from the performance of his duties to the Company;


NOW, THEREFORE, the parties agree as follows:


Section 1. Construction; Definitions. (a) In the event of the enactment of any successor provision to any statute or rule cited in this Agreement, references in this Agreement to such statute or rule shall be to such successor provision. The headings of Sections of this Agreement shall not control the meaning or interpretation of this Agreement. References in this Agreement to any Section are to the corresponding Section of this Agreement unless the context otherwise indicates.


(b) As used in this Agreement, the following terms shall have the meanings indicated:


1


2


(i) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act, as in effect on the date hereof.


(ii) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of securities of the Company constituting a
Substantial Block, but shall not include (A) the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company or any Person organized, appointed or
established by the Company or such Subsidiary as a fiduciary pursuant
to the terms of any such employee benefit plan, (B) any Person
consisting of or including any or all of Messrs. James C. Richardson,
Jr., David R. Clark, James M. Templeton, and L. Dent Miller, but only
if and so long as such Person consists of or includes at least one
full-time employee of the Company, and (C) any Person who or which,
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of a Substantial Block solely as a result of a change
in the aggregate number of shares of Voting Stock or other voting
securities of the Company outstanding since the last date on which such
Person acquired Beneficial Ownership of any securities of the Company
included in such Substantial Block.


(iii) "After-Tax Payments" means payments to or for the
benefit of the Employee under this Agreement after reduction for any
and all federal, state and local income tax and excise tax liabilities
of the Employee resulting therefrom.


(iv) "Agreement" means this Change of Control Agreement as it
may be amended from time to time in accordance with Section 10.


(v) A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:


(A) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has (1) the
right or obligation to acquire (whether such right or
obligation is exercisable or effective immediately or
otherwise) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, rights, warrants or
options, or otherwise or (2) the right to vote or dispose of
or has "beneficial ownership" of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the
Exchange Act), including pursuant to any agreement,
arrangement or understanding (whether or not in writing);
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of or to "beneficially own" any security
under this clause (2) if the agreement, arrangement or
understanding to vote such security (x) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and


2


3


in accordance with, the applicable provisions of the General
Rules and Regulations of the Exchange Act and (y) is not also
then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report); or


(B) that are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing), for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in clause (2) of subparagraph (A) of this
paragraph (v)) or disposing of any voting securities of the
Company.


No part of this definition shall cause a Person ordinarily engaged in
business as an underwriter of securities to be the "Beneficial Owner"
of or to "beneficially own" any securities acquired in a bona fide firm
commitment underwriting pursuant to an underwriting agreement with the
Company until the expiration of forty days after the date of such
acquisition.


(vi) "Benefit Plans" means all of the Company's employee
benefit plans, including life insurance and medical, dental, health,
accident and disability plans, in which the Employee was a participant
on the Change in Control Date.


(vii) "Board of Directors" means the entire Board of
Directors of the Company.


(viii) A "Business Combination" shall occur when


(A) any Person (other than a Subsidiary of the
Company) combines or consolidates with, or merges with and
into, the Company, and the Company shall be the continuing or
surviving corporation of such combination, consolidation or
merger and, in connection with such combination, consolidation
or merger, all or part of the shares of Voting Stock shall be
changed into or exchanged for other securities of any Person
or cash or any other property;


(B) the Company combines or consolidates with, or
merges with and into, any other Person (other than a
Subsidiary of the Company), and the Company shall not be the
continuing or surviving ...