Exhibit 10.2
CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT (this "Agreement") is made and entered
into as of October 23, 2006, by and between IR BioSciences Holdings, Inc., a
Delaware corporation (the "Company") and Xxx Xxxxxx (the "Executive").
RECITALS
WHEREAS, Executive is the Senior Director of Product Development and
Regulatory Affairs of Company;
WHEREAS, Board recognizes the possibility of a future Change of Control
(as hereinafter defined), which may alter the nature and structure of Company,
and recognizes that the uncertainty regarding the consequences of such an event
adversely affects Company's ability to retain Executive;
WHEREAS, in order to induce Executive to retain employment with the
Company, the Board and Company desire to provide benefits to Executive in the
event Executive's employment is terminated under certain circumstances involving
a Change of Control, and the Executive desires to be so induced; and
WHEREAS, Company and Executive desire to set forth in writing the terms
and conditions of their agreement with respect to Company's provision of
benefits to Executive in the event Executive's employment is terminated under
certain circumstances involving a Change of Control.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
obligations herein contained, it is mutually agreed between the parties hereto
as follows:
1. TERM. This Agreement shall commence on the Execution Date of this
Agreement and shall continue until the earlier of the following: (a) prior to a
Change of Control Date, the date of termination of Executive's employment with
Company; or (b) subsequent to a Change of Control Date the earlier of (x) the
date of termination of Executive's employment with the Company absent
Involuntary Termination or (y) the one-year anniversary of a Change of Control
Date.
2. AT-WILL STATUS. Notwithstanding any provision of this Agreement,
Executive is employed at-will , so that Executive, on the one hand, or Company,
on the other hand, may terminate Executive's employment at any time, with or
without notice, for any or no reason.
3. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings set forth herein:
"Affiliate" means any entity that is part of a controlled group of
corporations or is under common control with Company, as applicable, within
the meaning of Sections 1563(a), 404(b) or 414(c) of the Code.
"Board" means the Board of Directors of Company.
"Cause" shall mean (i) a material act of dishonesty in connection with
the Executive's responsibilities as an Executive of Company; (ii) the
Executive's conviction of, or plea of nolo contendere to, a felony or a crime
involving moral turpitude, (iii) the Executive's gross misconduct which has a
material adverse effect on the Company, or (iv) the Executive's consistent and
willful failure to perform his or her employment duties where such failure is
not cured within thirty (30) days after written notice to Executive by
Company.
"Change of Control" shall mean a Company Change in Control.
"Change of Control Date" means the date on which a Change of Control
occurs. If any such change in control occurs on account of a series of
transactions, the "Change of Control Date" is the date of the last of such
transactions.
"Code" means the Internal Revenue Code of 1986, and any amendments
thereto.
"Company Acquiring Person" means that a Person, considered alone or as
part of a "group" within the meaning of Section 13(d)(3) of the Exchange Act,
as amended, other than an Initial Member or any Affiliate, is or becomes
directly or indirectly the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of securities representing more than fifty percent (50%) of
the Company's then outstanding securities entitled to vote generally in the
election of the Board.
"Company Change in Control" means (i) a Person is or becomes a Company
Acquiring Person; (ii) holders of the securities of Company entitled to vote
thereon approve any agreement with a Person, (or, if such approval is not
required by applicable law and is not solicited by Company, the closing of
such an agreement) that involves the transfer of all or substantially all of
Company's assets on a consolidated basis; (iii) holders of the securities of
Company entitled to vote thereon approve a transaction (or, if such approval
is not required by applicable law and is not solicited by the Company, the
closing of such a transaction) pursuant to which Company will undergo a
merger, consolidation, statutory share exchange or similar event with a
Person, regardless of whether Company is intended to be the surviving or
resulting entity after the merger, consolidation, statutory share exchange or
similar event, other than a transaction that results in the voting securities
of Company carrying the right to vote in elections of persons to the Board
outstanding immediately prior to the closing of the transaction continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% (fifty percent) of Company's
voting securities carrying the right to vote in elections of persons to
Company's Board, or voting securities of such surviving entity carrying the
right to vote in elections of persons to the Board of Directors or similar
authority of such surviving entity, outstanding immediately after the closing
of such transaction; (iv) the Continuing Directors cease for any reason to
constitute at least half of the number of members of the Board; (v) holders of
the securities of Company entitled to vote thereon approve a plan of complete
liquidation of Company or an agreement for the liquidation by the Company of
all or substantially all of Company's assets (or, if such approval is not
required by applicable law and is not solicited by Company, the commencement
of actions constituting such a plan or the closing of such an agreement); or
(vi) the Board adopts a resolution to the effect that, in its judgment, as a
consequence of any one or more transactions or events or series of
transactions or events, a change in control of Company has effectively
occurred. Notwithstanding the foregoing, no event resulting from an initial
public offering of securities of Company shall constitute a Company Change in
Control. The Board shall be entitled to exercise its discretion in exercising
its judgment and in the adoption of such resolution, whether or not any such
transaction(s) or event(s) might be deemed, individually or collectively, to
satisfy any of the criteria set forth in subparagraphs (i) through (v) above.
"Continuing Director" means any member of the Board (i) who was a
member of the Board on the date hereof, or (ii) whose nomination for or
election to the Board was recommended or approved by a majority of the
Continuing Directors.
"Control" (and "Controlling" and "Controlled") shall mean possession,
directly or indirectly, of the power to direct or cause the direction of
management policies of such Entity through the ownership of voting securities
or by contract.
"Constructive Termination" means Executive's voluntary termination,
upon thirty (30) days' prior written notice to the Company, following: (A)
Executive being designated to a divisional as opposed to corporate role with
the Company or Operating Company; (B) a material reduction or change in job
duties, responsibilities and requirements, including, without limitation, any
material increase in travel responsibilities, inconsistent with Executive's
position with Company and Executive's duties, responsibilities and
requirements; (C) any reduction of Executive's base compensation or inactive
pay (bonus); or (D) Executive's refusal to relocate to a facility or location
more than fifty (50) miles from Company's current headquarters.
"Entity" means any corporation, firm, unincorporated organization,
association, partnership, limited partnership, limited liability company,
limited liability partnership, business trust, joint stock company, joint
venture organization, entity or business.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Involuntary Termination" shall mean, at any time within that period
which is one-year from the Change of Control Date (including such date), the
termination of the employment of Executive (i) by Company without Cause or
(ii) due to Constructive Termination.
"Person" means any human being, firm, corporation, partnership, or
other entity. "Person" also includes any human being, firm, corporation,
partnership, or other entity as defined in sections 13(d)(3) and 14(d)(2) of the
Exchange Act. The term "Person" does not include Company or any of its
Affiliates, and the term Person does not include any employee-benefit plan
maintained by the Company or any of its Affiliates, or any person or entity
organized, appointed, or established by the Company, or any of its Affiliates
for or pursuant to the terms of any such employee-benefit plan, unless the Board
determines that such an employee-benefit plan or such person or entity is a
"Person".
4. EFFECT OF TERMINATION. If Executive's employment is terminated with
Company at any time for any reason, Executive shall be entitled to (i)
reimbursement for final expenses that Executive reasonably and necessarily
incurred on behalf of the Company prior to Executive's termination of employment
(provided that Executive submits expense reports and supporting documentation as
required by Company practice or policy), (ii) unpaid compensation and benefits
and (iii) unused vacation, accrued through the date of Executive's termination
of employment.
5. EFFECT OF INVOLUNTARY TERMINATION. Only in the event of an Involuntary
Termination, Executive shall be entitled to the following, subject to Section 7
hereof:
a. continuation of Executive's base salary in effect on the
date of such Involuntary Termination for a period of eighteen (18) months from
the date of termination (the "Payment Period"), payable in accordance with the
Operating Company's prevailing compensation practice, as such practice may be
modified from time to time;
b. Notwithstanding any provision of any annual or long-term
incentive plan to the contrary, the Company shall pay to the Executive a lump
sum amount, in cash, equal to the sum of (i) any unpaid incentive compensation
which has been allocated or awarded to the Executive for a completed fiscal year
or other measuring period preceding the date of Involuntary Termination under
any such plan and which, as of the date of Involuntary Termination, is
contingent only upon the continued employment of the Executive to a subsequent
date, and (ii) a pro rata portion to the date of Involuntary Termination of the
aggregate value of all contingent incentive compensation awards to the Executive
for all then uncompleted periods under any such plan, calculated as to each such
award by multiplying the award that the Executive would have earned on the last
day of the performance award period, assuming the achievement, at the target
level (or, if greater, based on actual results to date of Involuntary
Termination), of the individual and corporate performance goals established with
respect to such award, by the fraction obtained by dividing the number of full
months and any fractional portion of a month during such performance award
period through the date of Involuntary Termination by the total number of months
contained in such performance award period;
c. should Executive elect continued medical insurance coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and
the Company is eligible under COBRA requirements, payment of Executive's COBRA
premiums during the Payment Period, subject to and in accordance with the
provisions of COBRA. If Company is not eligible for COBRA insurance coverage,
then Company will reimburse the monthly expense associated with private medical
insurance coverage during the Payment Period;
d. one-hundred percent (100%) of the unvested portion of each
outstanding stock option granted to Executive shall be accelerated so that they
become immediately exercisable upon the date of Involuntary Termination and may
be exercised during the Payment Period; provided that, such stock options that
remain unexercised upon expiration of the Payment Period shall then terminate
and cease to be outstanding; and
e. notwithstanding the terms and conditions of any written
stock option agreement between Executive and Company, as amended ("Stock Option
Agreements"), Executive shall have during the Payment Period the ability to
exercise any stock options that are vested as of Executive's date of termination
pursuant to the terms the applicable Stock Option Agreement or Change of Control
provisions herein, but in no event shall any stock option be exercisable at any
time after the expiration date of such stock option, and upon the expiration of
the Payment Period, such stock options shall terminate and cease to be
outstanding.
6. TAXES. (a) If any of the payments or benefits received or to be received
by the Executive whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement) (all such payments and benefits, excluding the
Gross-Up Payment, being hereinafter referred to as the "Total Payments") will be
subject to the Excise Tax, the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive, 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, and after taking into account the phase out of itemized
deductions and personal exemptions attributable to 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 Internal Revenue Code of 1986, as
amended (the "Code") unless, in the opinion of tax counsel ("Tax Counsel")
reasonably acceptable to the Executive and selected by the accounting firm which
was, immediately prior to the Change in 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)(l) 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 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 Executive 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 Executive's
residence on the date Involuntary of Termination, 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 Executive 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 Executive),
to the extent that such repayment results in a reduction in the Excise Tax and a
dollar-for-dollar reduction in the Executive'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 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 Executive 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.
(d) The payments provided in subsections (a) and (b) of this
Section 6 shall be made not later than the fifth day following the date of
Involuntary Termination provided, however, that if the amounts of such payments
cannot be finally determined on or before such day, the Company shall pay to the
Executive on such day an estimate, as determined in good faith by the Executive
or, in the case of payments referenced above of the minimum amount of such
payments to which the Executive is clearly entitled and shall pay the remainder
of such payments (together with interest on the unpaid remainder (or on all such
payments to the extent the Company fails to make such payments when due) at the
rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount
thereof can be determined but in no event later than the thirtieth (30th) day
after the date of Involuntary Termination. At the time that payments are made
under this Agreement, the Company shall provide the Executive with a written
statement setting forth the manner in which such payments were calculated and
the basis for such calculations including, without limitation, any opinions or
other advice the Company has received from Tax Counsel, the Auditor or other
advisors or consultants (and any such opinions or advice which are in writing
shall be attached to the statement).
(e) The Company also shall pay to the Executive all legal fees
and expenses incurred by the Executive in disputing in good faith any issue
hereunder relating to the termination of the Executive'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 Executive's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
7. CONDITIONS OF BENEFITS. Executive shall receive the benefits set forth
in Section 5 and 6 hereof only if Executive (i) executes a separation agreement,
which includes a general release, in a form and of a scope acceptable to Company
in its discretion; (ii) presents satisfactory evidence to Company that he has
returned all Company property, confidential information and documentation to
Company; (iii) complies with, and does not violate, any provision of any
confidentiality and/or non-solicitation agreements that Executive may have
entered into with Company (a "Confidentiality Agreement"); (iv) provides the
Operating Company and Company with a signed, written resignation of Executive's
status as an employee, officer and/or director of Company, as applicable; and
(v) shall not be entitled to receive any compensation, benefits, or other
payments from Company, except as set forth in this Agreement, as a result of or
in connection with the termination of Executive's employment at any time and for
any reason. In the event Company reasonably believes that Executive has
breached, or has threatened to breach, any provision of any Confidentiality
Agreement, Company shall immediately terminate all benefits and Executive shall
no longer be entitled to such benefits and payments under this Agreement and
further shall be required to reimburse all payments previously made by Company
pursuant to this Agreement. Such termination of benefits shall be in addition to
any and all legal and equitable remedies available to Company, including
injunctive relief.
8. GOVERNING LAW/INTERPRETATION. Executive and Company agree that this
Agreement and any claims arising out of or in connection with this Agreement
shall be governed by and construed in accordance with the laws of the State in
which Executive substantially performs his/her employment responsibilities or,
if none, the State of Arizona and shall in all respects be interpreted, enforced
and governed under the internal and domestic laws of such State, without giving
effect to the principles of conflicts of laws thereof.
9. ENTIRE AGREEMENT. This Agreement embodies the entire agreement among the
parties with respect to benefits payable upon an Involuntary Termination and
there have been and are no agreements, representations or warranties, oral or
written among the parties regarding the subject matter of this Agreement other
than those set forth or provided for in this Agreement.
10. ASSIGNMENT. Executive acknowledges that the services to be rendered
hereunder are unique and personal in nature. Accordingly, Executive may not
assign any rights or delegate any duties or obligations under this Agreement.
The rights and obligations of Company under this Agreement shall automatically
be assigned to the successors and assigns of Company (including, but not limited
to, any successor in the event of a Change of Control, as well as any other
entity that Controls, is Controlled by, or is under common Control with, any
such successor), and shall inure to the benefit of, and be binding upon, such
successors and assigns, as well as Executive's heirs and representatives.
11. NOTICES. All notices required hereunder shall be in writing and shall
be delivered in person, by facsimile or by certified or registered mail, return
receipt requested, and shall be effective upon sending if by facsimile, or upon
receipt if by personal delivery or certified or registered mail. All notices
shall be addressed as follows or to such other address as the parties may later
provide in writing:
if to Company:
IR BIOSCIENCES HOLDINGS, INC.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxx, CFO
and, if to Executive: at the home address specified on the
signature page of this Agreement.
12. SEVERABILITY/REFORMATION. If any one or more of the provisions (or any
part thereof) of this Agreement shall be held invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions (or any part thereof) shall not in any way be affected or impaired
thereby, and this Agreement shall be construed and reformed to the maximum
extent permitted by law. The language of all parts of this Agreement shall in
all cases be construed as a whole according to its fair meaning and not strictly
for or against either of the parties.
13. MODIFICATION AND WAIVER. This Agreement and the rights, remedies and
obligations contained in any provision hereof, may be modified or waived only in
accordance with this Section 13. No waiver by either party of any breach by the
other or any provision hereof shall be deemed to be a waiver of any later or
other breach thereof or as a waiver of any other provision of this Agreement.
This Agreement and its terms may not be waived, changed, discharged or
terminated orally or by any course of dealing between the parties, but only by a
written instrument signed by the party against whom any waiver, change,
discharge or termination is sought.
14. ARBITRATION. Any dispute, controversy or claim arising out of or in
connection with this Agreement shall be exclusively subject to arbitration
before the American Arbitration Association ("AAA"). Such arbitration shall take
place in the State as determined under Section 8 hereof, before a single
arbitrator in accordance with AAA's then current National Rules for the
Resolution of Employment Disputes. Judgment upon any arbitration award may be
entered in any court of competent jurisdiction. All parties shall cooperate in
the process of arbitration for the purpose of expediting discovery and
completing the arbitration proceedings. Nothing contained in this Section or
elsewhere in this Agreement shall in any way deprive the Company or Operating
Company of its right to obtain injunctive relief in a court of competent
jurisdiction for purposes of enforcing any confidentiality agreement entered
into between the Company or Operating Company and Executive.
15. SURVIVAL OF OBLIGATIONS AND RIGHTS. The obligations and rights
contained in Sections 4 through 8, inclusive, and 10 hereof shall survive the
termination of Executive's employment due to an Involuntary Termination.
Moreover, Section 14 hereof shall survive the termination of Executive's
employment for any reason.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
17. SECTION HEADINGS. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
IR BIOSCIENCES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
EXECUTIVE
/s/ Xxx Xxxxxx
-----------------
Xxx Xxxxxx
Address for Notice to Executive:
0000 X. XxXxxxxx Xxxxx
Xxxxxxxx Xxxxxx, XX 00000-0000
