EXHIBIT 10.26
iGO CORPORATION
AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT
THIS AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT (the "AGREEMENT")
is made and entered into by and between XXXXXXX XXXXX (the "AFFILIATE") and IGO
CORPORATION, a Delaware corporation (the "COMPANY"), effective as of the 26th
day of June, 2001.
R E C I T A L S
A. It is expected that the Company from time to time will consider the
possibility of an acquisition by another company or other Change of Control. The
Board of Directors of the Company (the "BOARD") recognizes that such
consideration can be a distraction to the Affiliate and can cause the Affiliate
to consider alternative 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 Affiliate,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of the Company.
B. The Board believes that it is imperative to provide the Affiliate with
certain benefits upon a Change of Control which provides the Affiliate with
incentive and encouragement to the Affiliate to remain with the Company
notwithstanding the possibility of a Change of Control.
C. The Company and the Affiliate entered into a Change of Control Agreement
dated December 4, 2000 (the "Original Agreement").
D. The Affiliate and the Company wish to amend the Original Agreement to read in
full as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the Company and the Affiliate hereby agree that the
Original Agreement shall be amended and restated in its entirety to read as set
forth herein:
1. TERM OF AGREEMENT. This Agreement shall terminate on the earlier of (i) the
date that all obligations of the parties hereto with respect to this Agreement
have been satisfied or (ii) the date upon which this Agreement terminates by
consent of the parties hereto.
2. AT-WILL EMPLOYMENT. To the extent that the Affiliate is or hereafter becomes
an employee of the Company, the Company and the Affiliate acknowledge that the
Affiliate's employment is and shall continue to be at-will, as defined under
applicable law. If the Affiliate's employment terminates for any reason,
including (without limitation) any termination prior to a Change of Control,
unless the termination is to avoid this agreement, the Affiliate shall not be
titled to any payments, benefits, damages, awards or compensation other than as
provided by this Agreement, or as may otherwise be available in accordance with
the Company's established Affiliate plans and practice or pursuant to other
agreements with the Company.
3. DEFINITION OF CHANGE OF CONTROL. "CHANGE OF CONTROL" means the occurrence of
any of the following events:
(a) Any "PERSON" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended) is or becomes 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 other than in a
private financing transaction approved by the Board of Directors;
(b) the direct or indirect sale or exchange by the stockholders of the
Company of all or substantially all of the stock of the Company;
(c) a merger or consolidation in which the Company is a party and in
which the stockholders of the Company before such ownership change do not
retain, directly or indirectly, at a least majority of the beneficial interest
in the voting stock of the Company after such transaction; or
(d) an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
4. CHANGE OF CONTROL BENEFITS.
(a) CHANGE OF CONTROL. The Affiliate shall be entitled to receive from
the Company the benefits as provided in this Section 4 if (i) there is a Change
of Control that occurs while the Affiliate is an officer or director of the
Company, and (ii) Affiliate's employment with the Company is involuntarily
terminated without cause within twelve (12) months following such Change of
Control.
(b) OPTION AND RESTRICTED STOCK ACCELERATED VESTING. In the event that
Affiliate's employment with the Company is involuntarily terminated without
cause within twelve (12) months following a Change of Control that occurs while
Affiliate is employed by the Company, an additional twenty-four (24) months of
the unvested portion of any stock option or restricted stock held by the
Affiliate as of the date of his or her termination shall automatically be
accelerated and a similar proportion of any repurchase option applicable thereto
shall lapse accordingly. For purposes of this paragraph, "cause" shall mean
Affiliate's gross negligence or willful misconduct 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. Notwithstanding the
foregoing, if such vesting acceleration would cause a contemplated Change of
Control transaction that was intended to be accounted for as a
"pooling-of-interests" transaction to become ineligible for such accounting
treatment under generally accepted accounting principles, as determined by the
Company's independent public accountants (the "ACCOUNTANTS") prior to the Change
of Control, Affiliate's stock options and restricted stock shall not have their
vesting so accelerated.
5. ATTORNEY FEES, COSTS AND EXPENSES. The prevailing party, determined without
regard to whether or not the action results in a final judgment, shall be
entitled to collect from the other party its reasonable attorneys' fees, costs
and expenses incurred in connection with any action brought by either party in
connection with the subject matter of this Agreement.
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6. LIMITATION ON PAYMENTS. In the event that the benefits provided for in this
Agreement or otherwise payable to the Affiliate (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 Affiliate's
severance benefits under subsection 3(b) shall be payable either
(a) in full, or
(b) as to such lesser amount which would result in no portion of such
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, result
in the receipt by the Affiliate on an after-tax basis, of the greatest amount of
benefits under subsection 3(b), notwithstanding that all or some portion of such
benefits may be taxable under Section 4999 of the Code. Unless the Company and
the Affiliate otherwise agree in writing, any determination required under this
Section 6 shall be made in writing by the Accountants, whose determination shall
be conclusive and binding upon the Affiliate and the Company for all purposes.
For purposes of making the calculations required by this Section 6, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company
and the Affiliate 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.
7. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, 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. 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 Section 7(a) or which
becomes bound by the terms of this Agreement by operation of law.
(b) AFFILIATE'S SUCCESSORS. The terms of this Agreement and all rights
of the Affiliate hereunder shall inure to the benefit of, and be enforceable by,
the Affiliate's personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees.
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8. 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. In the case of the Affiliate, mailed notices
shall be addressed to him at the home address which 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.
9. MISCELLANEOUS PROVISIONS.
(a) 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 Affiliate and by an authorized officer of the Company (other
than the Affiliate). 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.
(b) 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.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Nevada as applied to agreements entered into and performed within Nevada solely
by residents of that state.
(d) 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.
(e) 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 date set forth
above.
COMPANY: AFFILIATE:
IGO CORPORATION
By: /s/ X. Xxxxxxxxxx /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxx
Title: Chief Financial Officer
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