IRIDEX CORPORATION
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the "Agreement"), effective as of May 19,
2003 (the "Effective Date"), is made and entered into by and between Xxxxx
Xxxxxxxxxx (the "Employee") and IRIDEX Corporation, a Delaware corporation (the
"Company"). Certain capitalized terms used in this Agreement are defined in
Section 1 below.
RECITALS
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A. The Company has named Employee as the Company's Chief Financial
Officer and Senior Vice President, Finance and Administration effective as of
the Effective Date.
B. It is expected that the Company from time to time will consider the
possibility of a Change of Control (as defined below). 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.
C. The Board believes that it is in the best interests of the Company
and its stockholders 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 stockholders.
D. 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 certain benefits upon the Employee's Involuntary
Termination (as defined below) of employment following a Change of Control.
AGREEMENT
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NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties agree as follows:
1. Definition of Terms. The following terms referred to in this
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Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean (i) any act of personal dishonesty
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taken by the Employee, which is intended to result in substantial personal
enrichment of the Employee, (ii) the Employee's conviction of or plea of nolo
contendere to a felony or a material violation of federal or state law by
Employee that the Board reasonably believes has had or will have a detrimental
effect on the Company's reputation or business, (iii) an intentional and
reckless act by the Employee that constitutes misconduct or is injurious to the
Company, or (iv) continued failure by the Employee to perform Employee's duties
and obligations to the Company at any time after there has been delivered to the
Employee a written demand for performance from the Board of Directors or the
Chief
Executive Officer, which describes the basis for the Company's belief that the
Employee has not previously performed his duties or met his obligations as an
Employee.
(b) Change of Control. "Change of Control" shall mean the
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occurrence of any of the following events:
(i) the approval by the stockholders of the Company of a
merger or consolidation of the Company with any other corporation or entity;
provided, however, any merger or consolidation which would result in the voting
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securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation
shall not be deemed a Change of Control;
(ii) the approval by the stockholders of the Company of a
plan of complete liquidation of the Company or an agreement for the 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) becoming the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 50% or more of the total
voting power represented by the Company's then outstanding voting securities; or
(iv) a change in the composition of the Board occurring
within a 12-month period, as a result of which fewer than a majority of the
directors are Incumbent Directors. "Incumbent Directors" shall mean directors
who either (A) are directors of the Company as of the date immediately prior to
the Change of Control, or (B) are elected, or nominated for election, to the
Board with the affirmative votes of at least a majority of those directors whose
election or nomination was not in connection with any transactions described in
subsections (i), (ii), or (iii) or in connection with an actual or threatened
proxy contest relating to the election of directors of the Company.
(c) Involuntary Termination. "Involuntary Termination" shall mean:
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(i) without the Employee's express written consent, a
significant reduction of the Employee's duties, responsibilities or position
with the Company or surviving entity following the Change of Control relative to
the Employee's duties, responsibilities or position with the Company in effect
immediately prior to such reduction; provided, further, that in the event of a
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Change of Control, if the Employee is not named the Chief Financial Officer of
the parent company of the Successor or, if there is no such parent company,
Chief Financial Officer of the Successor or does not continue as Chief Financial
Officer of the Company in the event of a Change of Control as specified in
Section 1(b)(ii), (iii) or (iv), then the Employee will be deemed to have
suffered an Involuntary Termination; or
(ii) without the Employee's express written consent, a
material reduction, of the facilities and perquisites (including office space
and location) available to the Employee immediately prior to the Change of
Control; provided, however, Employee will be deemed not to
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have suffered an Involuntary Termination in the event similar such reductions
occur concurrently with and apply to the Company's senior management, including
the Company's Chief Executive Officer and other Senior Vice Presidents; or
(iii) without the Employee's express written consent, a
reduction of the Employee's base annual salary by fifteen percent (15%) or more
as compared to the baseline equal to the Employee's base annual salary in effect
immediately prior to the Change of Control; provided, however, Employee will be
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deemed not to have suffered an Involuntary Termination in the event similar such
reductions occur concurrently and apply to the Company's senior management,
including the Company's Chief Executive Officer and other Senior Vice
Presidents; or
(iv) without the Employee's express written consent, a
material reduction by the Company in the kind or level of employee benefits to
which the Employee is entitled immediately prior to the Change of Control with
the result that the Employee's overall benefits package is significantly
reduced; provided, however, Employee will be deemed not to have suffered an
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Involuntary Termination in the event similar such reductions occur concurrently
and apply to the Company's senior management, including the Company's Chief
Executive Officer and other Senior Vice Presidents; or
(v) without the Employee's express written consent, the
relocation of the Employee to a facility or a location more than twenty-five
(25) miles from his current location; provided, however, Employee will be deemed
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not to have suffered an Involuntary Termination in the event similar such
relocation occurs concurrently with and applies to the Company's senior
management, including the Company's Chief Executive Officer and other Senior
Vice Presidents; or
(vi) any purported involuntary termination of the Employee by
the Company which is not effected for Cause.
(d) Successor. "Successor" shall mean any corporation or other
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entity that acquires all or substantially all of the assets or business of the
Company, whether directly or indirectly and whether by purchase, lease, merger,
reverse triangular merger, consolidation, liquidation or otherwise. For all
purposes under this Agreement, the term "Company" shall include any Successor to
the Company's business and/or assets that executes and delivers the assumption
agreement described in Section 6(a) or which becomes bound by the terms of this
Agreement by operation of law to all or substantially all of the Company's
business and/or assets.
(e) Termination Date. "Termination Date" shall mean the effective
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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
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that all obligations of the parties hereto under this Agreement have been
satisfied or, if earlier, on such date, which is prior to a Change of Control,
that the Employee is no longer employed by the Company.
3. At-Will Employment. The Company and the Employee acknowledge that
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the Employee's employment is and shall continue to be at-will, as defined under
applicable law and that nothing in this Agreement shall affect in any manner
whatsoever the right or power of the Employee or the Company, or any Successor,
to terminate Employee's employment, for any reason. This
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Agreement does not constitute an express or implied promise of continued
employment for any reason. 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, under law, or
as may otherwise be established under the Company's then existing employee
benefit plans or policies at the time of termination.
4. Benefits.
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(a) Termination Following A Change of Control. If the Employee's
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employment with the Company is terminated either (i) as a result of an actual
termination by the Company or its Successor other than for Cause or (ii) as a
result of an Involuntary Termination and (i) or (ii) occur at any time on or
prior to nine (9) month anniversary after a Change of Control, then, subject to
Employee's executing the Company's form of severance and release agreement, (A)
fifty percent (50%) of the then remaining unvested shares exercisable pursuant
to outstanding stock options granted by the Company to the Employee prior to the
Change of Control shall become vested and exercisable as of such date and (B)
fifty percent (50%) of the then remaining unvested stock that is subject to a
right of repurchase by the Company (or its Successor) that was purchased or
granted prior to the Change of Control shall have such right of repurchase
lapse.
(b) Termination Apart from a Change of Control. If the Employee's
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employment with the Company is terminated either before a Change of Control or
after the nine (9) month period following a Change of Control, whether the
result of an actual termination for any reason or an Involuntary Termination,
then the Employee shall not be entitled to receive the benefits hereunder, but
may be eligible for those benefits, if any, as may then be established under the
Company's or the Successor's then existing severance and benefits plans and
policies at the time of such termination, subject to Employee's executing the
Company's form of severance and release agreement.
5. Limitation on Payments. In the event that the benefits provided for
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in this Agreement or otherwise payable to the Employee (i) constitute "parachute
payments" within the meaning of Section 280G of the Code, and (ii) would be
subject to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then the Employee's benefits under this Agreement shall be either
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such benefits being subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable
federal, state and local income taxes and the Excise Tax, results in the receipt
by the Employee on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be taxable under
Section 4999 of the Code.
Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon the Employee and the Company
for all purposes. For purposes of making the calculations required by this
Section, the Accountants may make reasonable assumptions and approximations
concerning
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applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Section 280G and 4999 of the Code. The Company and
the Employee shall furnish to the Accountants such information and documents as
the Accountants may reasonably request in order to make a determination under
this Section. The Company shall bear all costs the Accountants may reasonably
incur in connection with any calculations contemplated by this Section.
6. Successors.
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(a) Company's Successors. The rights and obligations of the
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Company under this Agreement will be binding upon and inure to the benefit of
its successors, assigns, heirs, executors, administrators and transferees. A
Successor to the Company shall assume the Company's obligations under this
Agreement and agree expressly in writing 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.
(b) Employee's Successors. The rights and obligations of the
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Employee under this Agreement will be binding upon and inure to the benefit of
the successors, assigns, heirs, executors and administrators of the Employee.
Notwithstanding the foregoing, the Employee may not assign, pledge or otherwise
transfer his rights or obligations under this Agreement without the prior
written consent of the Company.
7. Notices.
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(a) General. All notices and other communications required or
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permitted hereunder shall be in writing and shall be sent by first-class United
States certified mail, return receipt requested, postage prepaid, or delivered
in person, or delivered by overnight commercial messenger service, or by
facsimile (with written confirmation of receipt). All notices shall be deemed
delivered for purposes of this Agreement (i) when received, if delivered in
person, (ii) when sent, if by facsimile (with confirmation of receipt), (iii)
five (5) days after deposit in the U.S. mails, certified mail, return receipt
requested, postage prepaid, (iv) one (1) business day after being sent via
overnight commercial messenger service.
(b) Notices. All notices to the Company shall be addressed to:
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IRIDEX Corporation
Attn: Chief Executive Officer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
In the case of the Employee, notices shall be addressed to him at the home
address which he most recently communicated to the Company in writing.
(c) Notice of Termination. Any termination by the Company for
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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
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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
30 days after the deemed delivery of such notice). The failure by the Company to
include in the notice any fact or circumstance which contributes to a showing of
Cause shall not preclude the Company from asserting such fact or circumstance.
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.
8. Arbitration.
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(a) 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, or any agreements between Employee
and the Company relating to stock or stock options, or any other aspect of the
employment relationship, shall be settled by binding arbitration to be held in
Santa Xxxxx County, 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 and the
prevailing party shall be entitled to injunctive relief in any court of
competent jurisdiction to enforce the arbitration award. Each party in any
arbitration shall be responsible for his, her or its own legal fees and costs,
with the costs of the arbitrator borne by the Company.
(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. The 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) The Employee understands that nothing in this Section modifies
the Employee's at-will employment status. Either the Employee or the Company
can terminate the employment relationship at any time and for any reason.
(d) THE EMPLOYEE HAS READ AND UNDERSTANDS THIS SECTION, WHICH
DISCUSSES ARBITRATION. THE 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, OR ANY DISPUTE RELATED TO STOCK OPTIONS OR STOCK, TO BINDING
ARBITRATION, CONSTITUTES A WAIVER OF THE EMPLOYEE'S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING
CLAIMS:
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(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION;
NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC
ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FAIR LABOR
STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND LABOR CODE
SECTION 201, et seq;
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
9. Miscellaneous Provisions.
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(a) No Duty to Mitigate. The Employee shall not be required to
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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.
(b) Waiver. No provision of this Agreement may be modified,
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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.
(c) Integration. This Agreement and any outstanding stock option
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agreements and restricted stock purchase agreements referenced herein 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, with respect to this Agreement and any stock option agreement
or restricted stock purchase agreement.
(d) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the internal substantive
laws, but not the conflicts of law rules, of the State of California.
(e) Severability. The invalidity or unenforceability of any
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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.
(f) No Representations. Employee represents that he has had the
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opportunity to consult with an attorney of his choice, and has carefully read
and understands the scope and effect of
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the provisions of this Agreement. Employee further represents that he has not
relied upon any representations or statements made by the Company or anyone else
regarding his employment with the Company which are not specifically set forth
in this Agreement.
(g) Employment Taxes. All payments made pursuant to this
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Agreement shall be subject to withholding of applicable income and employment
taxes.
(h) Counterparts. This Agreement may be executed in counterparts,
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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.
IRIDEX CORPORATION:
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
EMPLOYEE:
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
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