BIOSPECIFICS TECHNOLOGIES CORP. Non-Employee Director Change of Control Agreement
Exhibit
10.1
This
Non-Employee Director Change of Control Agreement, effective as of June ___,
2007 is entered into by and between BioSpecifics Technologies Corp., a Delaware
corporation (the “Company”), with its principal offices located
at 00 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000, and ___________ (the
“Director”).
The
Director is a non-employee member of the Board of Directors of the Company
and
the Company and the Director desire to arrange for certain provisions applicable
in the event that the Director’s service on the Company’s Board of Directors
terminates under the circumstances provided herein.
Accordingly,
the parties hereto agree as follows:
1.
Change of Control. For purposes of this
Agreement, a “Change of Control” shall mean the occurrence of any one of the
following:
1.1.
the acquisition by any “person” (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934), other than the Company or
its
affiliates, from any party of an amount of the capital stock of the Company,
so
that such person holds or controls 40% or more of the Company’s capital stock;
or
1.2.
a merger or similar combination between the Company and another entity after
which 40% or more of the voting stock of the surviving corporation is held
by
persons other than the Company or its affiliates; or
1.3.
a merger or similar combination (other than with the Company) in which the
Company is not the surviving corporation; or
1.4.
the sale of all or substantially all of the Company’s assets or
business.
2.
Benefits. If the Director’s
service on the Board of Directors of the Company is terminated pursuant to
a
transaction resulting in a Change of Control, then the following provisions
shall apply:
2.1.
Option Vesting. 100% of any options to
purchase shares of common stock of the Company then held by the Director,
which
options are then subject to vesting, shall, notwithstanding any contrary
provision in the option agreement or stock option plan pursuant to which
such
options had been granted, be accelerated and become fully vested and exercisable
on the date immediately preceding the effective date of such termination.
All
other terms of the Director’s options shall remain in full force and
effect.
2.2.
Restricted Stock. If, on the date
immediately preceding the effective date of such termination, the Director
then
holds shares of common stock of the Company that are subject to restrictions
on
transfer (“Restricted Stock”) issued to the Director in a transaction other than
pursuant to the exercise of a stock option, then, notwithstanding any contrary
provision in the relevant stock purchase agreement or other instrument pursuant
to which the Director acquired such shares of Restricted Stock, such
restrictions shall expire in their entirety on the date immediately preceding
the date of termination and all of such shares of common stock shall become
transferable free of restriction, subject to the applicable provisions of
federal and state securities laws. All other terms of any existing stock
purchase or similar document shall remain in full force and effect.
3.
Confidentiality Agreement. The
Director confirms that as of the date hereof he or she has executed, or agrees
that he or she will execute, the Company’s standard Confidentiality Agreement
pursuant to which the Director has agreed to refrain from disclosing the
Company’s confidential information as set forth in such Confidentiality
Agreement.
4.
Miscellaneous.
4.1.
Assignment. This Agreement may not be
assigned, in whole or in part, by either party without the prior written
consent
of the other party, except that the Company shall assign its rights and
obligations under this Agreement to any corporation, firm or other business
entity with or into which the Company may merge or consolidate, or to which
the
Company may sell or transfer all or substantially all of its assets, or of
which
50% or more of the equity investment and of the voting control is owned,
directly or indirectly, by, or is under common ownership with, the Company.
In
the event of any such assignment by the Company, the Company shall not be
discharged from its liability hereunder.
4.2.
Notices. All notices, requests, demands
and other communications to be given pursuant to this Agreement shall be
in
writing and shall be deemed to have been duly given if delivered by hand
or
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the addresses set forth at the beginning of this Agreement or
such
other address as a party shall have designated by notice in writing to the
other
party, provided that notice of any change in address must actually have been
received to be effective hereunder.
4.3.
Integration. This Agreement is
the entire agreement of the parties with respect to the subject matter hereof
and supersedes any prior agreement or understanding relating to the subject
matter hereof. This Agreement may not be superseded amended, supplemented
or
otherwise modified except by a writing signed by the Director and the
Company.
4.4.
Binding Effect. Subject to Section 4.1,
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their successors, assigns, heirs and personal
representatives.
4.5.
Counterparts. This Agreement may be
executed in two counterparts, each of which shall be deemed an original and
shall together constitute one and the same instrument.
4.6.
Severability. If any provision
hereof shall, for any reason, be held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid
or
unenforceable provision had not been included herein. If any provision hereof
shall for any reason be held by a court to be excessively broad as to duration,
geographical scope, activity or subject matter, it shall be construed by
limiting and reducing it to make it enforceable to the extent compatible
with
applicable law as then in effect.
4.7.
Governing Law. This Agreement
shall be governed by the laws of the State of New York, without regard to
its
conflict-of-law provisions.
4.8.
Termination. Nothing in this Agreement
is intended to or shall modify the nature of the Director’s service as a member
of the Board of Directors of the Company. The Director may resign as a director
at any time and the Board may take action to remove the Director, subject
only
to the express provisions of this Agreement.
2
4.9.
Survival of Obligations;
Enforcement. The Director’s duties hereunder shall
survive the Director’s service as a member of the Board of Directors of the
Company. The Director acknowledges that a remedy at law for any breach or
threatened breach by the Director of the provisions of this Agreement may
be
inadequate and the Director therefore agrees that the Company shall be entitled
to injunctive relief in case of any such breach or threatened
breach.
3
IN
WITNESS WHEREOF, the undersigned
have duly executed and delivered this Agreement as of the date first written
above.
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DIRECTOR
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By:
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Name: Xxxxxx
X. Xxxxxx
Title:
President
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