CHANGE OF CONTROL AGREEMENT
Exhibit 10.11
This Change of Control Agreement (the “Agreement”) is made and entered into effective
as of ___by and between ___(the “Employee”) and Concentric
Medical, Inc., a Delaware corporation (the “Company”).
RECITALS
A. It is expected that another company or other entity may from time to time consider the
possibility of acquiring the Company or that a change in control may otherwise occur, with or
without the approval of the Company’s Board of Directors (the “Board”). The Board
recognizes that such consideration can be a distraction to the Employee, an executive officer or
key employee of the Company, and can cause the Employee to consider alternative employment
opportunities. The Board has determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued dedication and objectivity of the
Employee, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined
below) of the Company.
B. 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 or her employment with the Company.
C. The Board believes that it is imperative to provide the Employee with certain benefits upon
termination of the Employee’s employment in connection with a Change of Control, which benefits are
intended to provide the Employee with financial security and provide sufficient encouragement to
the Employee to remain with the Company notwithstanding the possibility of a Change of Control.
D. To accomplish the foregoing objectives, the Board of Directors has directed the Company,
upon execution of this Agreement by the Employee, to agree to the terms provided in this Agreement.
E. Certain capitalized terms used in the Agreement are defined in Section 4 below.
In consideration of the mutual covenants contained in this Agreement, and in consideration of
the continuing employment of Employee by the Company, the parties agree as follows:
1. 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, including (without limitation) any termination prior to a
Change of Control, the Employee shall not be entitled to any benefits, other than (A) as provided
by this Agreement, (B) as may be available in accordance with the terms of the Company’s
established employee plans and written policies at the time of termination, (C) as may be provided
in Employee’s Offer Letter with the Company dated
___ or Employee’s Employment Agreement
with the Company dated ___, or (D) as may be approved by
the Board of Directors of the Company in its discretion. The
terms of this Agreement shall
terminate upon the earlier of (i) the date on which Employee ceases to be employed or retained as a
consultant by the Company, other than as a result of an Involuntary Termination by the Company
without Cause, (ii) the date that all obligations of the parties hereunder have been satisfied, or
(iii) one year after a Change of Control. A termination of the terms of this Agreement pursuant to
the preceding sentence shall be effective for all purposes, except that such termination shall not
affect the provision of benefits on account of a termination of employment occurring prior to the
termination of the terms of this Agreement.
2. Stock Options and Restricted Stock. Subject to Section 5 below, in the event of a
Change of Control and regardless of whether the Employee’s employment with the Company is
terminated in connection with the Change of Control, on the effective date of the transaction, each
stock option to purchase the Company’s Common Stock granted to Employee over the course of his or
her employment with the Company (or share of Common Stock purchased by Employee and subject to a
repurchase option in favor of the Company) and held by Employee on the date of the transaction
shall become immediately vested (or the repurchase option shall be released) on such date as to
fifty percent (50%) of the total number of shares subject to the option or purchased by the
Employee that have not yet vested or been released from the Company’s repurchase option. In the
case of options, each such option shall be exercisable in accordance with the provisions of the
option agreement and plan pursuant to which such option was granted. The option shares that remain
unvested or the repurchase option that remains in effect as of the effective date of the
transaction shall thereafter vest or terminate at the same rate (that is, the same number of shares
shall vest or terminate during each vesting period) that was in effect prior to the Change of
Control, and shall accordingly vest or terminate over a period that is one-half of the total
vesting period that would otherwise be then remaining under the terms of the option agreement
pursuant to which each such option was granted or stock purchase agreement pursuant to which such
stock was purchased.
3. Change of Control.
(a) Termination Following A Change of Control. Subject to Section 5 below, if the
Employee’s employment with the Company is terminated at any time
within two years after a Change of
Control, then the Employee shall be entitled to receive severance benefits as follows:
(i) Voluntary Resignation. If the Employee voluntarily resigns from the
Company
(other than as an Involuntary Termination (as defined below) or if the Company terminates the
Employee’s employment for Cause (as defined below)), then the Employee shall not be entitled to
receive severance payments. The Employee’s benefits will be terminated under the Company’s then
existing benefit plans and policies in accordance with such plans and policies in effect on the
date of termination and in accordance with the terms of the Employee’s Offer Letter/Employment
Agreement or as otherwise determined by the Board of Directors of the Company.
(ii) Involuntary Termination. If the Employee’s employment is
terminated as a result
of an Involuntary Termination other than for Cause, each stock option to
purchase the Company’s Common Stock granted to Employee over the course of his or her
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employment with the Company (or share of Common Stock purchased by Employee and subject to a
repurchase option in favor of the Company) and held by Employee on the date of termination of
employment shall become immediately vested (or the repurchase option shall be released) on such
date as to fifty percent (50%) of the total number of shares subject to the option or purchased by
the Employee that have not yet vested or been released from the Company’s repurchase option. In
the case of options, each such option shall be exercisable in accordance with the provisions of the
option agreement and plan pursuant to which such option was granted.
(iii) Involuntary Termination for Cause. If the Employee’s employment
is terminated
for Cause, then the Employee shall not be entitled to receive severance benefits. The Employee’s
benefits will be terminated under the Company’s then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination.
(b) Termination Apart from A Change of Control. In the event the Employee’s
employment terminates for any reason after the one-year period following the effective date of a
Change of Control, then the Employee shall not be entitled to receive any severance benefits under
this Agreement. The Employee’s benefits will be terminated under the terms of the Company’s then
existing benefit plans and policies in accordance with such plans and policies in effect on the
date of termination and in accordance with the terms of the Employee’s Offer Letter/Employment
Agreement or as otherwise determined by the Board of Directors of the Company.
4. Definition of Terms. The following terms referred to in this Agreement shall have
the following meanings:
(a) Change of Control. “Change of Control” shall mean the occurrence of any
of the following events:
(i) Ownership. 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”)) 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 50% or more of the total voting power
represented by the Company’s then outstanding voting securities;
(ii) Merger/Sale of Assets. A merger or consolidation of the Company
whether or not
approved by the Board of Directors of the Company, other than a merger or consolidation which would
result in the voting 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) at least 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, or
the stockholders of the Company approve 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; or
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(iii) Change in Board Composition. After the Company has become subject to
the
provisions of the Exchange Act, a change in the composition of the Board of Directors of the
Company, 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 of this Agreement or (B) are elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened proxy contest relating to the
election of directors to the Company).
(b) Cause. “Cause” shall mean (i) gross negligence or willful misconduct in
the performance of the Employee’s duties to the Company where such gross negligence or willful
misconduct has resulted or is likely to result in substantial and material damage to the Company or
its subsidiaries, (ii) repeated unexplained or unjustified absence from the Company, (iii) a
material and willful violation of any federal or state law, (iv) commission of any act of fraud
with respect to the Company, or (v) conviction of a felony or a crime involving moral turpitude
causing material harm to the standing and reputation of the Company, in each case as determined in
good faith by the Board of Directors of the Company.
(c) Involuntary Termination. “Involuntary Termination” shall include any
termination by the Company other than for Cause and the Employee’s voluntary termination, upon 30
days prior written notice to the Company, following (i) a material reduction or change in job
duties, responsibilities and requirements from the Employee’s duties, responsibilities and
requirements prior to the Change of Control or in the materiality of those responsibilities, (ii)
any reduction of the Employee’s total compensation; or (iii) the Employee’s refusal to relocate to
a location more than 50 miles from the Company’s current location.
5. Limitation on Payments.
(a) In the event that the severance benefits provided for in this Agreement to the Employee
(i) constitute “parachute payments” within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section, would be
subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s benefits under
Sections 2 and 3 shall be payable either: (i) in full, or (ii) as to such lesser amount which
would result in no portion of such severance benefits being subject to excise tax under Section
4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by
the Employee on an after-tax basis, of the greatest amount of benefits under Sections 2 and 3,
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 5 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 5,
the Accountants may make reasonable assumptions and approximations concerning applicable taxes and
may rely on reasonable, good faith interpretations concerning the application of Section 280G and
4999 of the Code. The
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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 5.
(b) The payment of severance benefits provided for in this Agreement shall be subject to all
applicable income, employment and social security tax rules and regulations.
6. 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 obligations under this Agreement and agree
expressly to perform the 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. The
terms of this Agreement and all of the Employee’s rights hereunder shall inure to the benefit of,
and be enforceable by, the Employee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
7. Notice. 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. Mailed notices
to the Employee shall be addressed to the Employee at the home address which the Employee 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.
8. Miscellaneous Provisions.
(a) No Duty to Mitigate. The Employee shall not be required to mitigate the amount of
any payment contemplated by this Agreement (whether by seeking new employment or in any other
manner), nor, except as otherwise provided in this Agreement, 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 shall 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.
(c) Whole Agreement. No agreements, representations or understandings (whether oral
or written and whether express or implied) which are not expressly set forth in this Agreement have
been made or entered into by either party with respect to the subject matter hereof. This
Agreement supersedes any agreement of the same title and concerning similar subject matter dated
prior to the date of this Agreement, and by execution of this Agreement both parties agree that any
such predecessor agreement shall be deemed null and void.
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(d) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California without reference to conflict of
laws provisions.
(e) Severability. If any term or provision of this Agreement or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent of
such invalidity or unenforceability without invalidating or rendering unenforceable the remaining
terms and provisions of this Agreement or the application of such terms and provisions to
circumstances other than those as to which it is held invalid or unenforceable, and a suitable and
equitable term or provision shall be substituted therefore to carry out, insofar as may be valid
and enforceable, the intent and purpose of the invalid or unenforceable term or provision.
(f) Arbitration. Any dispute or controversy arising under or in connection with this
Agreement may be settled at the option of either party by binding arbitration in the County of
Santa Clara, California, in accordance with the rules of the American Arbitration Association then
in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
Punitive damages shall not be awarded.
(g) Legal Fees and Expenses. The parties shall each bear their own expenses, legal
fees and other fees incurred in connection with this Agreement.
(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.
(Signature Page Follows)
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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.
| CONCENTRIC MEDICAL, INC. | EMPLOYEE: | |||||
By: |
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| (Signature) | ||||||
Name: |
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Title:
|
(Print Name) | |||||
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