EXHIBIT 10.32
FORM OF CHANGE IN CONTROL EMPLOYMENT AGREEMENT
AGREEMENT by and between PathoGenesis Corporation, a Delaware corporation
(the "Company"), and _______________________ ("Executive"), dated as of
_____________, 199___ (the "Agreement Date").
Recitals
A. The Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of Executive,
notwithstanding the possibility, threat, or occurrence of a Change in Control
(as defined below) of the Company.
B. The Board believes it is imperative to diminish the inevitable
distraction of Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change in Control, to encourage Executive's
full attention and dedication to the Company, and to provide Executive with
compensation and benefits arrangements upon a Change in Control which (i) will
satisfy Executive's compensation and benefits expectations and (ii) are
competitive with those of other public corporations.
Agreement
In consideration of the mutual agreements contained herein, the Company and
Executive hereby agree as follows:
1. Certain Definitions. The terms set forth below have the following
meanings (such meanings to be applicable to both the singular and plural forms):
"Accrued Annual Bonus" means the amount of any Annual Bonus of Executive
accrued but not yet paid as of the Date of Termination.
"Accrued Base Salary" means the amount of any Annual Base Salary of
Executive accrued but not yet paid as of the Date of Termination.
"Accrued Obligations" -- see Section 4(a)(i)(A)(1).
"Affiliated Company" means a corporation, limited liability company,
partnership or other business entity controlled by, controlling or under common
control with the Company.
"Agreement Term" means the period commencing on the Agreement Date and
ending on the third anniversary of such date or, if later, such later date to
which the Agreement Term is extended pursuant to the following sentence. On each
day after the second anniversary of the Agreement Date, the Agreement Term shall
be automatically extended by one day to create a new one-year term until, at any
time on or after the second anniversary of the Agreement Date, the Company
delivers a written notice (an "Expiration Notice") to Executive stating that
this Agreement shall expire on a date specified in the Expiration Notice (the
"Expiration Date") that is at least 12 months after the date the Expiration
Notice is delivered to Executive; provided,
however, that if a Change in Control occurs before the Expiration Date specified
in an Expiration Notice, then (a) such Expiration Notice shall automatically be
cancelled and of no further effect and (b) the Company shall not give Executive
any additional Expiration Notice prior to the date which is 24 months after the
Effective Date.
"Annual Base Salary" -- see Section 2(b)(i).
"Annual Bonus" -- see Section 2(b)(ii).
"Board" means the board of directors of the Company.
"Cause" -- see Section 3(b).
"Change in Control" means any one or more of the following events:
(A) consummation of:
(i) any merger, reorganization or consolidation of the Company
or any Affiliated Company with or into any corporation or other Person
if Persons who were the beneficial owners (as such term is used in
Rule 13d-3 under the Exchange Act) of Voting Securities of the Company
immediately before such merger, reorganization or consolidation are
not, immediately thereafter, the beneficial owners, directly or
indirectly, of at least 51% of the Voting Power of the corporation or
other Person surviving or resulting from such merger, reorganization
or consolidation (or the parent corporation thereof) in substantially
the same respective proportions as their beneficial ownership,
immediately before the consummation of such merger, reorganization or
consolidation, of the then-outstanding Common Stock and Voting Power
of the Company; or
(ii) the sale or other disposition of all or substantially all of
the consolidated assets of the Company, other than a sale or other
disposition by the Company of all or substantially all of its
consolidated assets to an entity of which at least 51% of the then-
outstanding common shares and the Voting Power immediately after such
sale or other disposition are beneficially owned (as such term is used
in Rule 13d-3 under the Exchange Act) by shareholders of the Company
in substantially the same respective proportions as their beneficial
ownership of Common Stock and Voting Power of the Company immediately
before the consummation of such sale or other disposition; or
(B) approval by Company shareholders of a complete liquidation or
dissolution of the Company; or
(C) the following individuals cease for any reason to constitute a
majority of the directors of the Company then serving: individuals who, on
the Agreement Date, constitute the Board and any subsequently-appointed or
elected director of the Company (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including a consent solicitation, relating to the election or
removal of one or more 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 two-thirds
of the Company's directors
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then in office whose appointment, election or nomination for election was
previously so approved or recommended or who were directors on the
Agreement Date; or
(D) the acquisition or holding by any person, entity or "group"
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act),
other than by any Exempt Person, the Company, any Affiliated Company, any
employee benefit plan of the Company or an Affiliated Company, of
beneficial ownership (as such term is used in Rule 13d-3 under the Exchange
Act) of 20% or more of the Company's then-outstanding Voting Securities;
provided, however, that:
(i) no such person, entity or group shall be deemed to own
beneficially any securities held by the Company or an Affiliated
Company or any employee benefit plan (or any related trust) of the
Company or an Affiliated Company;
(ii) no Change in Control shall be deemed to have occurred
solely by reason of any such acquisition if both (x) after giving
effect to acquisition, such person, entity or group has beneficial
ownership of less than 30% of the then-outstanding Voting Securities
of the Company and (y) prior to such acquisition, at least two-thirds
of the directors described in (and not excluded from) paragraph (C) of
this definition vote to adopt a resolution of the Board to the
specific effect that such acquisition shall not be deemed a Change in
Control; and
(iii) no Change in Control shall be deemed to have occurred
solely by reason of any such acquisition or holding in connection with
any merger, reorganization or consolidation of the Company or any
Affiliated Company which is not a Change in Control within the meaning
of paragraph (A)(i) of this definition.
Notwithstanding the occurrence of any of the foregoing events, (a) no Change in
Control shall occur if at least two-thirds of the directors described in (and
not excluded from) paragraph (C) of this definition, in their sole and absolute
discretion, vote to adopt a resolution of the Board to the specific effect that
the occurrence of such event shall not be deemed a Change in Control and (b) no
Change in Control shall occur with respect to Executive if (x) the event which
otherwise would have been a Change in Control (or the transaction which resulted
in such event) was initiated by Executive or was discussed by him with any third
party, in either case without the approval of the Board with respect to
Executive's initiation or discussion, as applicable, or (y) Executive is, by
written agreement, a participant on Executive's own behalf in a transaction in
which the persons (or their affiliates) with whom Executive has the written
agreement cause the Change in Control to occur and, pursuant to the written
agreement, Executive has an equity interest (or a right to acquire such equity
interest) in the resulting entity.
"Code" means the Internal Revenue Code of 1986, as amended.
"Date of Termination" means the effective date of any termination of
Executive's employment for any or no reason, whether by the Company or by
Executive, as specified in the Notice of Termination; provided, however, that if
Executive's employment is terminated by reason of Executive's death or
Disability, the Date of Termination shall be the date of death of or the
Disability Effective Date, as the case may be.
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"Disability" -- see Section 3(a).
"Disability Effective Date" -- see Section 3(a).
"Effective Date" means the first date during the Agreement Term on which a
Change in Control occurs.
"Employment Period" means the period commencing on the Effective Date and
ending on the second anniversary of such date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempt Person" means any underwriter temporarily holding securities
pursuant to an offering of such securities.
"Good Reason" -- see Section 3(c).
"including" means including without limitation.
"Non-Employee Director" means a director of the Company who is not an
employee of (i) the Company, (ii) any Affiliated Company or (iii) any Person who
beneficially owns more than 30% of the Common Stock then outstanding.
"Person" means any individual, corporation, partnership, limited liability
company, sole proprietorship, trust or other entity.
"Policies" means policies, practices and programs.
"Prorated Annual Bonus" means (i) the product of the amount of the Annual
Bonus to which Executive would have been entitled (based on target-level
performance) if he had been employed by the Company on the last day of the
Company's fiscal year that includes the Date of Termination and if performances
were achieved at the target level for such fiscal year, multiplied by (ii) a
fraction of which (x) the numerator is the number of days that have elapsed in
such fiscal year through the Date of Termination and (y) the denominator is 365.
"Taxes" means the incremental United States federal, state and local
income, excise and other taxes payable by Executive with respect to any
applicable item of income.
"Voting Power" of an issuer means the combined voting power of the then-
outstanding Voting Securities of the issuer.
"Voting Securities" of an issuer means all securities of the issuer
entitled to vote generally in the election of directors.
2. Terms of Employment. The Company hereby agrees to continue Executive
in its employ during the Employment Period on the following terms and
conditions:
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(a) Position and Duties.
(i) During the Employment Period, (A) Executive's position (including
status, offices and titles), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant
of those held or exercised by or assigned to Executive at any time during
the 90-day period immediately preceding the Effective Date and (B)
Executive's services shall be performed at the location where Executive was
employed immediately preceding the Effective Date or any office or location
less than 50 miles from such location.
(ii) During the Employment Period, and excluding any periods of
vacation, sick leave and disability to which Executive is entitled,
Executive shall devote reasonable attention and time during normal business
hours to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to Executive
hereunder, to use Executive's reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment Period,
Executive may (A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments, so long as
such activities are consistent with the policies of the Company at the
Effective Date and do not significantly interfere with the performance of
Executive's responsibilities (as set forth in this Agreement) as an
employee of the Company. To the extent that any such activities have been
conducted by Executive prior to the Effective Date and were consistent with
the policies of the Company at the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of Executive's responsibilities to the
Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, Executive shall
receive an annual base salary in cash ("Annual Base Salary"), which shall
be paid in a manner consistent with the Company's payroll practices
immediately preceding the Effective Date at a rate at least equal to 12
times the monthly base salary (unreduced by any salary reductions or
deferrals pursuant to a plan maintained under Section 401(k) of the Code or
any similar plan) paid or payable to Executive by the Company for the
calendar month immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Company shall review the Annual
Base Salary at least annually and shall increase Annual Base Salary at any
time and from time to time as shall be substantially consistent with
increases in base salary awarded in the ordinary course of business to peer
executives of the Company. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to Executive under this
Agreement. Annual Base Salary shall not be reduced after any such increase
and the term "Annual Base Salary" shall refer to Annual Base Salary as so
increased.
(ii) Annual Bonus. In addition to Annual Base Salary, Executive shall
be awarded, for each fiscal year part or all of which is included in the
Employment Period, an annual bonus (the "Annual Bonus") in cash which is at
least equal to the greater of
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(A) the amount of annual bonus actually paid to Executive during the
fiscal year immediately preceding the Effective Date or (B) the target
bonus for the Executive for the fiscal year that includes the Effective
Date (or, if not yet determined for the current fiscal year, for the
immediately preceding fiscal year) previously determined by the Board or
the compensation committee of the Board (in either case (A) or (B), any
such annual bonus amount to be annualized for any fiscal year consisting of
less than 12 full months or with respect to which Executive has been
employed by the Company for less than 12 full months). The Company shall
pay each such Annual Bonus in cash no later than 90 days after the end of
the fiscal year for which the Annual Bonus is awarded, unless Executive
shall elect to defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Other Plans. In addition to Annual Base
Salary and Annual Bonus payable as hereinabove provided, Executive shall be
entitled to participate during the Employment Period in all incentive,
stock option, savings and other plans and Policies applicable to peer
executives of the Company, but in no event shall such plans and Policies
provide Executive with incentive or other benefits opportunities, in each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company for Executive under such plans and Policies as in
effect at any time during the 90-day period immediately preceding the
Effective Date.
(iv) Welfare Benefit Plans. During the Employment Period, Executive
and/or Executive's family, as the case may be, shall be eligible to
participate in and shall receive all benefits under welfare benefit plans
and Policies provided by the Company and applicable to peer executives of
the Company, but in no event shall such plans and Policies provide benefits
which are less favorable, in the aggregate, than the most favorable of such
plans and Policies in effect at any time during the 90-day period
immediately preceding the Effective Date.
(v) Expenses. During the Employment Period, Executive shall be
entitled to prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the most favorable Policies of the Company in
effect at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to Executive, as in effect at any time
thereafter with respect to peer executives of the Company.
(vi) Fringe Benefits. During the Employment Period, Executive shall
be entitled to fringe benefits in accordance with the most favorable plans
and Policies of the Company in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
Executive, as in effect at any time thereafter with respect to peer
executives of the Company.
(vii) Office; Support Staff. During the Employment Period, Executive
shall be entitled to an office or offices of a size and with furnishings
and other appointments, and to personal secretarial and other assistance,
at least equal to the most favorable of the foregoing provided to Executive
by the Company at any time during the 90-day period immediately preceding
the Effective Date or, if more favorable to Executive, as provided at any
time thereafter with respect to peer executives of the Company.
(viii) Vacation. During the Employment Period, Executive shall be
entitled to paid vacation in accordance with the most favorable plans and
Policies of the Company
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as in effect at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to Executive, as in effect at any time
thereafter with respect to peer executives of the Company.
(ix) Affiliated Companies. To the extent that, immediately prior to
the Effective Date, Executive has been on the payroll of, and participated
in the bonus, incentive or employee benefit plans of, an Affiliated
Company, the references to the Company contained in Sections 2(b)(i)
through 2(b)(viii) and elsewhere in this Agreement referring to benefits to
which Executive may be entitled shall also refer to such Affiliated
Company.
3. Termination of Employment.
(a) Death or Disability. Executive's employment shall terminate
automatically upon Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of Executive has occurred
during the Employment Period, it may give to Executive written notice of its
intention to terminate Executive's employment. In such event, Executive's
employment with the Company shall terminate as of the 30th day after Executive's
receipt of such notice (the "Disability Effective Date"); provided that, within
the 30 days after such receipt, Executive shall not have returned to full-time
performance of Executive's duties. "Disability" means the absence of Executive
from Executive's duties with the Company on a full-time basis for a period of
time equal to the Waiting Period as a result of incapacity due to mental or
physical illness that is determined to be total and permanent by a physician
selected by the Company or its insurers and reasonably acceptable to Executive
or Executive's legal representative. "Waiting Period" means the waiting period
under a long-term disability plan of the Company that is applicable to Executive
and satisfies the requirements of Section 2(b)(iv).
(b) Cause. The Company may terminate Executive's employment for Cause
during the Employment Period. "Cause" means the occurrence of any one or more of
the following actions or failures to act as determined by the Board in its
reasonable judgment and in good faith:
(i) embezzlement, fraud or theft by Executive with respect to the
property of the Company or a conviction of Executive for any felony
involving moral turpitude or causing material harm, financial or otherwise,
to the Company;
(ii) habitual neglect in the performance of Executive's significant
duties (other than on account of incapacity due to physical or mental
illness or Disability); or
(iii) a demonstrably deliberate act or failure to act of Executive,
including a violation of the rules or policies of the Company, which causes
a material financial or other loss, damage or injury to the property,
reputation or employees of the Company; provided, however, that, unless
such act or failure to act was done by Executive in bad faith or without a
reasonable belief that Executive's act or failure to act, as the case may
be, was in the best interest of the Company or was required by applicable
law, such act or failure to act shall not constitute Cause if, within 20
days after the Board or the Chief Executive Officer of the Company gives
Executive written notice of such act or failure to act that specifically
refers to this Section, Executive cures such act or failure to act to the
fullest extent that it is curable;
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provided, however, that:
(A) "Cause" shall not mean (x) bad judgment or negligence other than
habitual neglect of significant duties or (y) any act or omission in
respect of which the Board could have properly determined that Executive
met the applicable standard of conduct for the indemnification or
reimbursement under the by-laws of the Company or applicable law, in each
case as in effect at the time of such act or omission; and
(B) a termination of Executive's employment shall not be deemed to be
for Cause unless each of the following conditions is satisfied:
(1) The Company provides Executive a written notice (a "Notice
of Intent to Terminate") not less than 30 days prior to the Date of
Termination setting forth the Company's intention to consider
terminating Executive's employment. Such Notice shall include a
statement of the intended Date of Termination and a detailed
description of the specific facts that the Company believes to
constitute Cause.
(2) Any act or omission of Executive alleged to constitute Cause
shall have occurred not more than 12 months before the earliest date
on which any member of the Board who is not a party to the act or
omission knew or in the reasonable exercise of his or her duties as a
director should have know of such act or omission.
(3) Executive is offered an opportunity to respond to such
Notice of Intent to Terminate by appearing in person, together with
Executive's legal counsel, before the Board on a date specified in the
Notice of Intent to Terminate, which date shall be at least 25 days
after Executive's receipt of the Notice of Intent to Terminate and, in
any event, at least five days prior to the Date of Termination
proposed in such Notice.
(4) By a vote of the Board that includes the affirmative vote of
at least 75% of the Non-Employee Directors, the Board determines that
the actions of Executive specified in the Notice of Intent to
Terminate constitute Cause and that Executive's employment should
accordingly be terminated for Cause.
(5) The Company provides Executive with a copy of the Board's
written determination pursuant to clause (4) setting forth in detail
(a) the specific basis for such termination for Cause and (b) the Date
of Termination (which date shall be not more than 15 days after the
giving of such notice).
By determination of the Board, the Company may suspend Executive from
Executive's duties for a period of up to 30 days with full pay and benefits
thereunder during the period of time in which the Board is determining whether
to terminate Executive for Cause. Any purported termination for Cause by the
Company that does not satisfy each substantive and procedural requirement of
this Section 3(b) shall be treated for all purposes under this Agreement as a
termination by the Company without Cause.
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(c) Good Reason. Executive may terminate Executive's employment at any
time during the Employment Period for Good Reason. "Good Reason" means any one
or more of the following:
(i) the assignment to Executive of any duties inconsistent in any
respect with Executive's position (including status, offices and titles),
authority, duties or responsibilities as contemplated by Section 2(a), or
any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by
Executive;
(ii) any failure by the Company to comply with any of the provisions
of Section 2(b), other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by Executive;
(iii) any requirement that Executive be based at any office or
location other than the location specified in Section 2(a)(i)(B);
(iv) any purported termination by the Company of Executive's
employment otherwise than as expressly permitted by this Agreement (it
being understood that any such purported termination shall not be effective
for any other purpose of this Agreement); or
(v) any failure by the Company to comply with Section 10(c).
Any good faith determination of Good Reason made by Executive shall be
conclusive.
(d) Notice of Termination. Any termination of Executive's employment by
the Company or by Executive shall be communicated by Notice of Termination to
the other party hereto. "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so indicated
and (iii) specifies the Date of Termination (which date shall be not more than
15 days after the giving of such notice). The failure by Executive to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason shall not waive any right of Executive hereunder or
preclude Executive from asserting such fact or circumstance in enforcing
Executive's rights thereunder.
4. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability.
(i) If, during the Employment Period, Executive's employment shall
be terminated by the Company other than for Cause, or by reason of death or
Disability, or by Executive for Good Reason, then the Company shall have
all of the following obligations:
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(A) The Company shall pay to Executive the following amounts in
a lump sum in cash within 10 days after the Date of Termination:
(1) an amount equal to the sum of the Accrued Base Salary,
the Accrued Annual Bonus, any compensation previously deferred by
Executive under any non-qualified deferred compensation plan or
arrangement (together with any accrued interest or earnings
thereon) and accrued but unpaid vacation pay (collectively, the
"Accrued Obligations"),
(2) the Prorated Annual Bonus, and
(3) the product of [two] [three] times the sum of (x) the
Annual Base Salary and (y) the Annual Bonus.
(B) Any stock options or similar equity incentive rights
previously granted to Executive that are not then fully vested and
exercisable pursuant to their terms shall become fully vested and
immediately exercisable on the Date of Termination and, together with
any stock options or similar equity incentive rights that vested on
the Effective Date (to the extent such options or rights have not
expired pursuant to their terms and are unexercised), remain
exercisable until the earlier of (x) expiration in accordance with
their terms or (y) the first anniversary of the Date of Termination.
As to any other types of equity-based incentive awards previously
granted to Executive under any equity-based incentive compensation
plan or arrangement of the Company, any restrictions on exercise,
payment or transfer shall immediately lapse, and (unless waived or
deferred by Executive) Executive shall be paid any cash or property
underlying such award, within 10 days after the Date of Termination,
in all respect as though any vesting requirements or any corporate or
individual performance goals associated with such awards had been met
as of the Date of Termination.
(C) (1) During the period commencing on the Date of Termination
and continuing thereafter for two years, or such longer period as
provided in any plan or Policy in which Executive is a
participant as of the Date of Termination (such eligibility to be
determined based on the terms of such plan or Policy as in effect
on the Effective Date or, if more favorable to Executive, the
terms of such plan or Policy as in effect on the Date of
Termination), the Company shall continue to provide, at no cost
to Executive, medical, dental and similar health care benefits
(or, if such benefits are not available, the after-tax economic
value thereof determined pursuant to paragraph (3) of this
Section 4(a)(i)(C)) to Executive and Executive's family.
(2) The terms of such benefits shall be at least as
favorable to Executive as the terms of the most favorable plans
or Policies of the Company applicable to peer executives at
Executive's Date of Termination, but in no event less favorable
to Executive than the most favorable plans or Policies of the
Company applicable to peer executives during the 90-day period
immediately preceding the Effective Date.
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(3) The after-tax economic value of any benefit to be
provided pursuant to paragraph (i) above shall be deemed to be
the present value of the premiums expected to be paid for all
such benefits that are to be provided on an insured basis. The
after-tax economic value of all other benefits shall be deemed to
be the present value of the expected net cost to the Company of
providing such benefits.
(D) The Company shall cause Executive to receive, at the
Company's expense, standard outplacement services from a nationally-
recognized firm selected by Executive; provided that the cost to the
Company of such services shall not exceed 15% of the sum of (x) Annual
Base Salary and (y) the Annual Bonus in effect on the Date of
Termination.
(ii) If the present value as of the Effective Date, determined in
accordance with Sections 280G(b)(2)(ii) and 280G(d)(4) of the Code (the
"Present Value"), of the payments and distributions by the Company to or
for the benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise) in
connection with, or arising out of, Executive's employment with the Company
or a change in ownership or effective control of the Company or a
substantial portion of its assets ("Payments") exceeds 110% of the greatest
Present Value of Payments (the "Safe Harbor Cap") that could be paid to
Executive such that the receipt thereof would not give rise to any excise
tax, then at Executive's option the Company shall reduce the maximum
amounts payable under this Agreement to the maximum amount that could be
paid to Executive such that the Present Value of the Payments does not
exceed the Safe Harbor Cap. The reduction of the amounts payable hereunder,
if applicable, shall be made by reducing the payments as elected by
Executive. For purposes of reducing the Payments to the Safe Harbor Cap,
only amounts payable under this Agreement (and no other Payments) shall be
reduced. If the reduction of the amounts payable hereunder would not result
in a reduction of the Present Value of the Payments to the Safe Harbor Cap,
no amounts payable under this Agreement shall be reduced pursuant to this
paragraph.
(iii) All determinations required to be made under the first sentence
of paragraph (ii) above shall be made by a nationally recognized certified
public accounting firm (which shall not be the firm serving as accountant
or auditor for the individual, entity or group effecting the Change in
Control) designated by Executive, which shall provide detailed supporting
calculations both to the Company and Executive within 15 business days
after delivery by Executive to the Company of a written request for
determination. All fees and expenses of said accounting firm shall be
borne solely by the Company. Any determination by the accounting firm
shall be binding upon the Company and Executive.
(b) Cause; Other than for Good Reason. If, during the Employment Period,
Executive's employment is terminated (i) by the Company for Cause or (ii) by
Executive other than for Good Reason, the Company shall pay to Executive in a
lump sum in cash within 10 days after the Date of Termination any unpaid salary
earned, and any unpaid accrued vacation pay, as of the Date of Termination.
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(c) Death or Disability. If, during the Employment Period, Executive's
employment is terminated by reason of Executive's death or Disability, the
Company shall pay an amount equal to all Accrued Obligations to Executive or
Executive's estate or beneficiary, as applicable, in cash a lump sum within 10
days after the Date of Termination.
5. Non-Exclusivity of Rights. If Executive receives payments pursuant to
Section 4(a), Executive hereby waives the right to receive severance payments
under any other plan, policy or agreement of the Company. Except as provided in
the previous sentence, nothing in this Agreement shall prevent or limit
Executive's continuing or future participation in any benefit, bonus, incentive
or other plans or Policies provided by the Company or any of its Affiliated
Companies and for which Executive may qualify, nor shall anything herein limit
or otherwise affect such rights as Executive may have under any other agreements
with the Company or any of its Affiliated Companies.
6. Conflicts. In the event of a conflict between the provisions of this
Agreement and the terms of any written agreement between the Company and
Executive evidencing any equity-based incentive awards with respect to a payment
or benefit to be made or provided to Executive this Agreement, whichever of the
provisions of this Agreement or such written agreement that are most favorable
to Executive will control.
7. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including set-off,
counterclaim, recoupment, defense or other claim, right or action that the
Company may have against Executive or others.
8. No Duty to Mitigate. Executive shall not be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Agreement, nor shall the amount
of any payment hereunder be reduced by any compensation earned by Executive as
result of employment by another employer or by any retirement benefits which may
be paid or payable to Executive; provided, however, that any continued welfare
benefits provided for pursuant to Section 4(a)(i)(C) shall not duplicate any
benefits that are provided to Executive and Executive's family by such other
employer and shall be second to any coverage provided by such other employer.
9. Enforcement.
(a) Reimbursement of Expenses. If Executive incurs legal, accounting,
expert witness or other fees and expenses in an effort to establish entitlement
to compensation and benefits under this Agreement, the Company shall, regardless
of the outcome of such effort, pay or reimburse Executive for such fees and
expenses, together with an additional amount such that, after providing for the
Taxes payable by Executive in respect of such additional amount, there remains a
balance sufficient to pay the Taxes payable by Executive in respect of such
payment or reimbursement of fees and expenses by the Company. The Company shall
reimburse Executive for such fees and expenses on a monthly basis within 10 days
after its receipt of Executive's request for reimbursement accompanied by
reasonable evidence that the fees and expenses were incurred.
(b) Refund. If Executive does not prevail (after exhaustion of all
available judicial remedies), and the Company establishes before a court of
competent jurisdiction that Executive
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had no reasonable basis for bringing an action hereunder and acted in bad faith
in doing so, no further reimbursement for legal fees and expenses shall be due
to Executive and Executive shall refund any amounts previously reimbursed
hereunder with respect to such action.
(c) Interest. If the Company fails to pay any amount provided under this
Agreement when due, the Company shall pay interest on such amount at a rate
equal to 200 basis points over the prime commercial lending rate published from
time to time in The Wall Street Journal (Midwest Edition); provided, however,
that the interest rate determined in accordance with this Section shall in no
event exceed the highest legally-permissible interest rate.
10. Successors.
(a) Successors to Executive. This Agreement is personal to Executive and
without the prior written consent of the Company shall not be assignable by
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by Executive's legal
representatives.
(b) Successors to Company. The Company may not assign its rights and
obligations under this Agreement without the prior written consent of Executive
except to a successor which has satisfied the provisions of Section 10(c). This
Agreement shall inure to the benefit of the Company and such permitted assigns.
(c) Obligations of Company's Successors. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. All references to the Company shall also
refer to any such successor, and the Company and such successor shall be jointly
and severally liable for all obligations of the Company under this Agreement.
11. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to such
State's principles of conflict of laws.
(b) Notices. All notices hereunder shall be in writing and shall be given
by hand delivery, nationally-recognized courier service that provides overnight
delivery, or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Executive, at Executive's most recent home address on file with
the Company.
If to the Company, to: PathoGenesis Corporation
Attention: General Counsel
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice shall be effective when actually
received by the addressee.
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(c) Severability. If any part of this Agreement is declared by any court
or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any part of this Agreement not declared
to be unlawful or invalid. Any paragraph or part of a paragraph so declared to
be unlawful or invalid shall, if possible, be construed in a manner which will
give effect to the terms of such paragraph or part of a paragraph to the fullest
extent possible while remaining lawful and valid.
(d) Tax Withholding. The Company may withhold from any amounts payable
under this Agreement such federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(e) Amendments; Waiver. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the Company and Executive. A
waiver of any term, covenant or condition contained in this Agreement shall not
result in a waiver of any other term, covenant or condition, and any waiver of
any default shall not result in a waiver of any later default.
(f) Entire Agreement. This Agreement contains the entire understanding of
the Company and Executive with respect to the subject matter hereof, and shall
supersede all prior agreements, promises and representations of the parties
regarding employment or severance, whether in writing or otherwise.
(g) No Right to Employment. Except as may be provided under any other
agreement between Executive and the Company, the employment of Executive by the
Company is at will, and, prior to the Effective Date, may be terminated by
either Executive or the Company at any time. Upon a termination of Executive's
employment prior to the Effective Date, there shall be no further rights under
this Agreement.
(h) Sections. Except where otherwise indicated by the context, any
reference to a "Section" shall be to a section of this Agreement.
(i) Survival of Executive's Rights. All of Executive's rights hereunder
shall survive the termination of Executive's employment.
(j) Number and Gender. Wherever appropriate, the singular shall include
the plural, the plural shall include the singular, and the masculine shall
include the feminine.
(k) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, Executive and the Company have executed this Agreement
as of the date first above written.
PATHOGENESIS CORPORATION
By _________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
_________________________________
[Name of Executive]
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