EXHIBIT 10.6
VISX, INCORPORATED
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of Control Severance Agreement (the "Agreement"), is made and
entered into effective as of [DATE], (the "Effective Date"), by and between
[EMPLOYEE NAME] (the "Employee") and VISX, Incorporated, a Delaware corporation
(the "Company"). Certain capitalized terms used in this Agreement are defined in
Section 1 below.
RECITALS
A. It is expected that the Company from time to time will consider the
possibility of a Change of Control. The Board of Directors of the Company (the
"Board") recognizes that such consideration can be a distraction to the Employee
and can cause the Employee to consider alternative employment opportunities.
B. The Board believes that it is in the best interests of the Company and
its shareholders to provide the Employee with an incentive to continue his
employment and to maximize the value of the Company upon a Change of Control for
the benefit of its shareholders.
C. In order to provide the Employee with enhanced financial security and
sufficient encouragement to remain with the Company notwithstanding the
possibility of a Change of Control, the Board believes that it is imperative to
provide the Employee with severance benefits upon certain terminations of the
Employee's employment following a Change of Control.
AGREEMENT
In consideration of the mutual covenants herein contained and the
continued employment of Employee by the Company, the parties agree as follows:
1. Definition of Terms. The following terms referred to in this Agreement
shall have the following meanings:
(a) Cause. "Cause" for termination by the Company of the Employee's
employment shall mean (i) the willful and continued failure by the Employee to
substantially perform the Employee's duties with the Company (other than any
such failure resulting from the Employee's incapacity due to physical or mental
illness) after a written demand for substantial performance is delivered to the
Employee by the Board, which demand specifically identifies the manner in which
the Board believes that the Employee has not substantially performed the
Employee's duties, or (ii) the willful engaging by the Employee in conduct which
is demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise. For purposes of clauses (i) and (ii) of this
definition, (x) no act, or failure to act, on the Employee's part shall be
deemed "willful" unless done, or omitted to be done, by the Employee not in good
faith and without reasonable belief that the Employee's act, or failure to act,
was in the best interest of the Company and (y) in the event of a dispute
concerning the application of this provision, no claim by the Company that Cause
exists shall be given effect unless the Company establishes to the Board by
clear and convincing evidence that Cause exists.
(b) Change of Control. "Change of Control" shall mean the occurrence of
any of the following events:
(i) there is consummated a merger or consolidation of the Company or
any subsidiary of the Company with any other corporation or business entity,
other than a merger or consolidation which results in the directors of the
Company immediately prior to such merger or consolidation continuing to
constitute at least a majority of the board of directors of the Company, the
surviving entity or any parent thereof, as the case may be;
(ii) any approval by the shareholders of the Company of a plan of
complete liquidation of the Company or there is consummated a sale or
disposition by the Company of all or substantially all of the Company's assets;
(iii) any "Person," (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any subsidiary of the Company, or any
company owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their beneficial ownership of stock of the
Company)) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more (excluding in the securities beneficially owned by such
person any securities acquired directly from the Company or its Affiliates) of
the combined voting power of the Company's then outstanding securities; or
(iv) a change in the composition of the Board, as a result of which
fewer than a majority of the directors are Incumbent Directors. "Incumbent
Directors" shall mean (A) individuals who, on the Effective Date of this
Agreement, constitute the Board and (B) any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's shareholders was approved
or recommended by a vote of at least a majority of the directors then still in
office who either were directors on the Effective Date or whose appointment,
election or nomination for election was previously so approved or recommended.
(c) Compensation Continuation Period. "Compensation Continuation Period"
shall mean the period of time commencing with termination of the Employee's
employment as a result of Involuntary Termination at anytime within twenty-four
(24) months after a Change of Control and ending with the expiration of
thirty-six (36) months following the date of the Employee's termination.
(d) Current Compensation. "Current Compensation" shall mean an amount
equal to the greater of (i) the sum of the Employee's highest annual rate of
base salary in effect during the fiscal year in which a Change of Control occurs
plus Employee's target bonus for such fiscal year assuming 100% individual and
Company performance; or (ii) the sum of the Employee's highest annual rate of
base salary in effect during the fiscal year of Employee's termination plus
Employee's target bonus for such fiscal year assuming 100% individual and
Company performance.
(e) Involuntary Termination. "Involuntary Termination" shall mean (i)
without the Employee's express written consent, a significant reduction of the
Employee's duties, position or responsibilities relative to the Employee's
duties, position or responsibilities in effect immediately prior to such
reduction, or the removal of the Employee from such position, duties and
responsibilities, unless the Employee is provided with comparable duties,
position and responsibilities; (ii) without the Employee's express written
consent, a substantial reduction of the facilities and perquisites (including
office space and location) available to the Employee immediately prior to such
reduction; (iii) a reduction by the Company of the Employee's base salary as in
effect immediately prior to such reduction; (iv) a material reduction by the
Company in the kind or level of employee benefits to which the Employee is
entitled immediately prior to such reduction with the result that the Employee's
overall benefits package is significantly reduced; provided, however, that a
reduction of the Employee's benefits to a level greater than or equal to those
available to similarly situated employees of the Company and employees of any
entity in control of the Company shall not constitute an Involuntary
Termination; (v) without the Employee's express written consent, the relocation
of the Employee to a facility or a location more than thirty-five (35) miles
from his location immediately prior to such Change of Control; (vi) any
termination of the Employee by the Company which is not effected for Cause; or
(vii) the failure of the Company to obtain the assumption of this Agreement by
any successors contemplated in Section 6 below.
(f) Potential Change of Control. A "Potential Change of Control" shall be
deemed to have occurred if the event set forth in any one of the following
paragraphs shall have occurred:
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change of Control;
(ii) any Person becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 15% or more of
either the then outstanding shares of common stock of the Company or
the combined voting power of the Company's then outstanding
securities (not including in the securities beneficially owned by
such Person any securities acquired directly from the Company or its
affiliates); or
(iii) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change of Control has occurred.
provided, however, clause (ii) above shall not apply to any Person who, as of
the Effective Date, is the beneficial owner of 15% or more of either the
outstanding shares of common stock of the Company or the combined voting power
of the Company's outstanding securities.
(g) Termination Date. "Termination Date" shall mean the effective date of
any notice of termination delivered by one party to the other hereunder.
2. Term of Agreement. This Agreement shall terminate upon the date that
all obligations of the parties hereto under this Agreement have been satisfied.
3. At-Will Employment. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's
employment terminates for any reason, the Employee shall not be entitled to any
payments, benefits, damages, awards or compensation other than as provided by
this Agreement, or as may otherwise be established under the Company's then
existing employee benefit plans or policies at the time of termination.
4. Severance Benefits.
(a) Termination Following A Change of Control.
(i) Involuntary Termination. If the Employee's employment with
the Company terminates as a result of an Involuntary Termination at any time
within twenty-four (24) months after a Change of Control, then the Employee
shall be entitled to receive from the Company:
(1) A cash lump sum payment, within 15 days following the
Termination Date, in an amount equal to the sum of (I)
three times the Current Compensation, plus (II) three
times the amount that would have been contributed by the
Company to VISX, Inc. 401(k) Plan on the Employee's behalf
during the three years immediately following the
Termination Date, determined as if the Employee made the
maximum permissible contributions thereto, plus (III) a
pro rata bonus for the fiscal year in which the
Termination Date occurs, determined by multiplying the
Employee's target bonus for such year by a fraction, the
numerator of which is the number of days in such fiscal
year through and including the Termination Date and the
denominator of which is 365;
(2) during the Compensation Continuation Period, life,
disability, accident and health insurance benefits
substantially similar to those provided to the Employee
and [HIS/HER] dependents immediately prior to the
Termination Date (or, if more favorable to the Employee,
those provided to the Employee and [HIS/HER] dependents
immediately prior to the occurrence of the Change of
Control), at no greater cost to the Employee than the cost
to the Employee immediately prior to the applicable date;
(3) during the Compensation Continuation Period, continuation
of all perquisites substantially similar to those provided
to the Employee and [HIS/HER] dependents immediately prior
to the Termination Date (or, if more favorable to the
Employee, those provided to the Employee and [HIS/HER]
dependents immediately prior to the occurrence of the
Change of Control); and
(4) outplacement services suitable to the Employee's position
for the duration of the Compensation Continuation Period
or, if earlier, until the first acceptance by the Employee
of an offer of employment.
For purposes of this Section 4(a)(i), an Involuntary Termination shall also be
deemed to have occurred (and the Employee's employment shall be deemed to have
been terminated by the Company without Cause within 24 months after the
occurrence of a Change of Control) if the Employee's employment is terminated by
the Company without Cause following the occurrence and during the pendency of a
Potential Change of Control (whether or not a Change of Control ever occurs) and
such termination either (i) is at the request or direction of a Person who has
entered into an agreement with the Company the consummation of which would
constitute a Change of Control or (ii) is otherwise reasonably demonstrated by
the Employee to be in anticipation of or in connection with a Change of Control.
(ii) Other Termination. If the Employee's employment with the
Company terminates other than as a result of an Involuntary Termination at any
time within twenty-four (24) months after a Change of Control, then the Employee
shall not be entitled to receive severance or other benefits hereunder, but may
be eligible for those benefits (if any) as may then be established under the
Company's then existing severance and benefits plans and policies at the
Termination Date.
(b) Termination Apart from a Change of Control. If the Employee's
employment with the Company terminates for any or no reason (other than a
termination which occurs or is deemed to have occurred within twenty-four (24)
months following a Change of Control), then the Employee shall not be entitled
to receive severance or other benefits hereunder, but may be eligible for those
benefits (if any) as may then be established under the Company's then existing
severance and benefits plans and policies at the Termination Date.
(c) Accrued Wages and Vacation; Expenses. Without regard to the
reason for, or the timing of, Employee's termination of employment: (i) the
Company shall pay the Employee any unpaid base salary due for periods prior to
the Termination Date; (ii) the Company shall pay the Employee all of the
Employee's accrued and unused vacation through the Termination Date; and (iii)
following submission of proper expense reports by the Employee, the Company
shall reimburse the Employee for all expenses reasonably and necessarily
incurred by the Employee in connection with the business of the Company prior to
the Termination Date. These payments shall be made promptly upon termination and
within the period of time mandated by law.
5. Additional Payments. (a) Whether or not the Employee becomes entitled
to the benefits set forth in Section 4(a)(i) hereof, if any of the payments or
benefits received or to be received by the Employee in connection with a Change
of Control or the Employee's termination of employment (whether pursuant to this
Agreement or any other agreement with the Company, any Person whose actions
result in a Change of Control or any Person affiliated with the Company or such
Person) (such payments or benefits, excluding the Gross-Up Payment, as defined
below, hereinafter referred to as the "Total Payments") will be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the Company
shall pay to the Employee an additional amount (the "Gross-Up Payment") such
that the net amount retained by the Employee, after deduction of any Excise Tax
on the Total Payments and any federal, state and local income and employment
taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total
Payments.
(b) For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of
the Total Payments shall be
treated as "parachute payments" (within the meaning of section 280G(b)(2) of the
Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably
acceptable to the Employee and selected by the accounting firm which was,
immediately prior to the Change of Control, the Company's independent auditor
(the "Auditor"), such payments or benefits (in whole or in part) do not
constitute parachute payments, including by reason of section 280G(b)(4)(A) of
the Code, (ii) all "excess parachute payments" within the meaning of section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in
the opinion of Tax Counsel, such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered (within the
meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount
allocable to such reasonable compensation, or are otherwise not subject to the
Excise Tax, and (iii) the value of any noncash benefits or any deferred payment
or benefit shall be determined by the Auditor in accordance with the principles
of sections 280G(d)(3) and (4) of the Code. For purposes of determining the
amount of the Gross-Up Payment, the Employee shall be deemed to pay federal
income tax at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state and locality
of the Employee's residence on the Termination Date (or if there is no
Termination Date, then the date on which the Gross-Up Payment is calculated for
purposes of this Section 5), net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
(c) In the event that the Excise Tax is finally determined to be
less than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Employee shall repay to the Company, within five (5) business days
following the time that the amount of such reduction in the Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction (plus that portion of the Gross-Up Payment attributable to the Excise
Tax and federal, state and local income and employment taxes imposed on the
Gross-Up Payment being repaid by the Employee), to the extent that such
repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Employee's taxable income and wages for purposes of federal,
state and local income and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken into
account hereunder in calculating the Gross-Up Payment (including by reason of
any payment the existence or amount of which cannot be determined at the time of
the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest, penalties or additions payable by the
Executive with respect to such excess) within five (5) business days following
the time that the amount of such excess is finally determined. The Employee and
the Company shall each reasonably cooperate with the other in connection with
any administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total Payments.
6. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the Company's obligations under this Agreement and
agree expressly to perform the Company's obligations under this Agreement in the
same manner and to the same extent as the Company would be required to perform
such obligations in the absence of a succession. For all purposes under this
Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
(b) Employee's Successors. Without the written consent of the
Company, Employee shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Employee hereunder
shall inure to the benefit of, and be enforceable by, Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
7. Notices.
(a) General. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Employee,
mailed notices shall be addressed to him at the home address that he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Secretary.
(b) Notice of Termination. Any termination by the Company for Cause
or by the Employee as a result of a voluntary resignation or an Involuntary
Termination shall be communicated by a notice of termination to the other party
hereto given in accordance with this Section. Such notice shall indicate the
specific termination provision in this Agreement relied upon, shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination under the provision so indicated, and shall specify the Termination
Date (which shall be not more than thirty (30) days after the giving of such
notice). The failure by the Employee to include in the notice any fact or
circumstance which contributes to a showing of Involuntary Termination shall not
waive any right of the Employee hereunder or preclude the Employee from
asserting such fact or circumstance in enforcing his rights hereunder.
(c) Dispute Concerning Termination. If within fifteen (15) days
after any notice of termination is given, or, if later, prior to the Termination
Date (as determined without regard to this Section 7(c), the party receiving
such notice of termination notifies the other party that a dispute exists
concerning the termination, the Termination Date shall be extended until the
date on which the dispute is finally resolved, either by mutual written
agreement of the parties or by a final judgment, order or decree of an
arbitrator or a court of competent jurisdiction (which is not appealable or with
respect to which the time for appeal therefrom has expired and no appeal has
been perfected); provided, however, that the Termination Date shall be extended
by a notice of dispute given by the Employee only if such notice is given in
good faith and the Employee pursues the resolution of such dispute with
reasonable diligence.
(d) Compensation During Dispute. If a purported termination occurs
(or is deemed to have occurred) following a Change of Control and the
Termination Date is extended in accordance with Section 7(c) hereof, the Company
shall continue to pay the Employee the full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
salary) and continue the Employee as a participant in all compensation, benefit
and insurance plans in which
the Employee was participating when the notice giving rise to the dispute was
given, until the Termination Date, as determined in accordance with Section 7(c)
hereof. Amounts paid under this Section 7(d) are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement.
(d) Legal Fees. The Company also shall pay to the Employee all legal
fees and expenses incurred by the Employee in disputing in good faith any issue
hereunder relating to the termination of the Employee's employment, in seeking
in good faith to obtain or enforce any benefit or right provided by this
Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of section 4999 of the Code to any payment or
benefit provided hereunder. Such payments shall be made within five (5) business
days after delivery of the Employee's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
8. Arbitration.
(a) To the extent permitted by law, any dispute or controversy
arising out of, relating to, or in connection with this Agreement, or the
interpretation, validity, construction, performance, breach, or termination
thereof, shall be settled by binding arbitration to be held in San Francisco,
California, in accordance with the National Rules for the Resolution of
Employment Disputes then in effect of the American Arbitration Association (the
"Rules"). The arbitrator may grant injunctions or other relief in such dispute
or controversy. The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court having jurisdiction.
(b) The arbitrator(s) shall apply California law to the merits of
any dispute or claim, without reference to conflicts of law rules. The
arbitration proceedings shall be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. Employee hereby consents to
the personal jurisdiction of the state and federal courts located in California
for any action or proceeding arising from or relating to this Agreement or
relating to any arbitration in which the parties are participants.
(c) Employee understands that nothing in this Section modifies
Employee's at-will employment status. Either Employee or the Company can
terminate the employment relationship at any time, with or without cause.
(d) EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EMPLOYEE UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION,
VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING
ARBITRATION CONSTITUTES A WAIVER OF EMPLOYEE'S RIGHT TO A JURY TRIAL.
9. Miscellaneous Provisions.
(a) Confidentiality. The Parties hereto each agree to use their best
efforts to maintain in confidence the underlying facts leading up to this
Agreement, the existence of this Agreement and the contents and terms of this
Agreement.
(b) No Duty to Mitigate. The Employee shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor shall any
such payment be reduced by any earnings that the Employee may receive from any
other source.
(c) Waiver. No provision of this Agreement may be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the Company
(other than the Employee). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(d) Integration. This Agreement, the stock option agreements related
to the Employee's stock options, and the Company's written policies and
procedures represent the entire agreement and understanding between the parties
as to the subject matter herein and supersede all prior or contemporaneous
agreements, whether written or oral.
(e) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal substantive
laws, but not the conflicts of law rules, of the State of California.
(f) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(g) Employment Taxes. All payments made pursuant to this Agreement
shall be subject to withholding of applicable income and employment taxes.
(h) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
COMPANY: VISX, INCORPORATED
By:_______________________________
Name: Xxx Xxxxxx
Title: President, CEO & Chairman of the Board
EMPLOYEE: __________________________________
[NAME]
[ADDRESS]
[CITY, STATE, ZIP]
