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Exhibit 10.1
AMENDED AND RESTATED CHANGE IN CONTROL
AGREEMENT
This Amended and Restated Change in Control
Agreement (the " Agreement ") is made as of
December ,
2008 (the " Effective Date ") between Senomyx, Inc., a
Delaware corporation (the " Company "), and
(" Employee "). This Agreement hereby amends and
supersedes in its entirety the Change in Control Agreement entered
into by and between the Company and Employee that was originally
established in March 2008 (the " Prior Agreement
").
RECITALS
WHEREAS, the Company and the Employee desire
to amend and restate the Prior Agreement in its entirety to clarify
the application of Section 409A of the Internal Revenue Code
to Employee’s benefits provided under the Prior Agreement,
effective as of the Effective Date.
NOW THEREFORE, for good and valuable
consideration, the sufficiency of which is hereby acknowledged,
Employee and the Company (each, a "Party," and collectively,
the "Parties" ) agree as follows:
1.
BENEFITS IN THE EVENT OF A CHANGE IN CONTROL . If (i) a
Change in Control (defined below) occurs and (ii) during the
period beginning one (1) month prior to the effective date of
such Change in Control and ending eighteen (18) months after the
effective date of such Change in Control, Employee’s
employment with the Company is terminated either (A) by the
Company without Cause (defined below) (not including death or
Disability (as defined below)) or (B) by Employee for Good
Reason (defined below) (not including death or Disability), then,
without further action by Employee or the Company, Employee shall
be entitled to the benefits set forth below:
(a)
The vesting applicable to all options to purchase shares of the
Company’s capital stock ( "Options" ) and all shares
of the Company’s capital stock which are subject to the
Company’s right to repurchase such shares ( "Restricted
Stock" ) held by Employee as of the effective date of such
termination shall be accelerated in full such that Employee shall
have the right to exercise in accordance with the terms thereof all
or any portion of such Options (notwithstanding any vesting
schedule set forth in such Options) and any such Company repurchase
rights with respect to such Restricted Stock shall lapse in full;
and
(b)
Employee shall be entitled to receive a lump sum cash payment in an
amount equal to one hundred percent (100%) of Employee’s
Annual Pay (as defined below), payable on the Effective Date
specified in the Release (as defined below) delivered by Employee
to the Company following such Change in Control. The
foregoing payments shall be subject to standard deductions and
withholdings.
(c)
Assuming the Employee timely and accurately elects to continue his
health insurance benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (" COBRA "), the Company shall
pay the insurer the applicable COBRA premiums on behalf of Employee
and his family (the " COBRA Payments ") until the earliest
of (i) the end of the 12 month period following
Employee’s termination, (ii) the expiration of the
Employee’s
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continuation coverage under COBRA and any
applicable state COBRA-like statute that provides mandated
continuation coverage or (iii) the date the Employee becomes
eligible for health insurance benefits of a subsequent employer.
For the avoidance of doubt, it is intended that the COBRA Payments
are exempt from the application of Section 409A of the
Internal Revenue Code.
2.
RELEASE. Notwithstanding the foregoing, the Employee shall
not receive any of the severance payments or benefits set forth
under Section 1, unless upon Employee’s termination of
employment the Employee furnishes the Company with a waiver and
release of claims in a form acceptable to the Company and
substantially as attached hereto as Exhibit A (the
"Release" ) within the applicable time period set forth
therein, but in no event later than forty-five (45) days following
termination of the Employee’s employment, and permits such
Release to become effective in accordance with its terms (such
date, the " Release Effective Date "). If a
majority of the Board of Directors of the Company (the
"Board" ) determines in good faith that the Employee has
breached any provision of his Proprietary Information and
Inventions Agreement with the Company or any provision of this
Agreement or the Release, the Company shall be excused from the
obligation to provide any severance payment under Section 1
and the Company shall be entitled to full recovery of any severance
payment already provided to the Employee under Section 1.
3.
DEFINITIONS. For purposes of this Agreement, capitalized
terms used herein shall have the following meanings:
(a)
"Annual Pay" shall mean the sum of the Employee’s
(i) base salary in effect on the date of termination and
(ii) the last annual bonus paid to the Employee by the Company
prior to the date of termination.
(b)
"Cause" means the occurrence of any of the following:
(i) the Employee’s commission of any felony or any crime
involving fraud, dishonesty or moral turpitude under the laws of
the United States or any state thereof; (ii) the
Employee’s attempted commission of, or participation in, a
fraud or act of dishonesty against the Company; (iii) the
Employee’s intentional and material violation of any contract
or agreement between the Employee and the Company or any statutory
duty owed to the Company; (iv) the Employee’s
unauthorized use or disclosure of the Company’s confidential
information or trade secrets or (v) the Employee’s gross
misconduct. The determination that a termination is for Cause
shall be made by the Company in its discretion. Any
determination by the Company that the employment of the Employee
was terminated by reason of dismissal without Cause for the
purposes of determining benefits under this Agreement shall have no
impact upon any determination of the rights or obligations of the
Company or such Employee for any other purpose.
(c)
"Change in Control" means the occurrence, in a single
transaction or in a series of related transactions, of any one or
more of the following events:
(i)
any Exchange Act Person (as defined in the Company’s Amended
and Restated 2004 Equity Incentive Plan (the "Plan" ))
becomes the owner, directly or indirectly, of securities of the
Company representing more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities
other than by virtue of a merger,
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consolidation or similar transaction.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur (A) on account of the acquisition of
securities of the Company by an investor, any affiliate thereof or
any other Exchange Act Person from the Company in a transaction or
series of related transactions the primary purpose of which is to
obtain financing for the Company through the issuance of equity
securities or (B) solely because the level of Ownership (as
defined in the Plan) held by any Exchange Act Person (the "
Subject Person ") exceeds the designated percentage
threshold of the outstanding voting securities as a result of a
repurchase or other acquisition of voting securities by the Company
reducing the number of shares outstanding, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of voting securities by
the Company, and after such share acquisition, the Subject Person
becomes the Owner of any additional voting securities that,
assuming the repurchase or other acquisition had not occurred,
increases the percentage of the then outstanding voting securities
Owned by the Subject Person over the designated percentage
threshold, then a Change in Control shall be deemed to occur;
(ii)
there is consummated a merger, consolidation or similar transaction
involving (directly or indirectly) the Company and, immediately
after the consummation of such merger, consolidation or similar
transaction, the stockholders of the Company immediately prior
thereto do not Own, directly or indirectly, either
(A) outstanding voting securities representing more than fifty
percent (50%) of the combined outstanding voting power of the
surviving Entity (as defined in the Plan) in such merger,
consolidation or similar transaction or (B) more than fifty
percent (50%) of the combined outstanding voting power of the
parent of the surviving Entity in such merger, consolidation or
similar transaction, in each case in substantially the same
proportions as their Ownership of the outstanding voting securities
of the Company immediately prior to such transaction;
(iii) the
stockholders of the Company approve or the Board approves a plan of
complete dissolution or liquidation of the Company, or a complete
dissolution or liquidation of the Company shall otherwise
occur;
(iv)
there is consummated a sale, lease, license or other disposition of
all or substantially all of the consolidated assets of the Company
and its Subsidiaries (as defined in the Plan), other than a sale,
lease, license or other disposition of all or substantially all of
the consolidated assets of the Company and its Subsidiaries to an
Entity, more than fifty percent (50%) of the combined voting power
of the voting securities of which are Owned by stockholders of the
Company in substantially the same proportions as their Ownership of
the outstanding voting securities of the Company immediately prior
to such sale, lease, license or other disposition; or
(v)
individuals who, on the date of this Agreement, are members of the
Board (the "Incumbent Board" ) cease for any reason to
constitute at least a majority of the members of the Board;
provided, however, that if the appointment or election (or
nomination for election) of any new Board member was approved or
recommended by a majority vote of the members of the Incumbent
Board then still in office, such new member shall, for purposes of
this Agreement, be considered as a member of the Incumbent
Board.
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(d)
"Disability" shall mean Employee’s failure or inability, for
reasons of health,
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