EXHIBIT 10.1
Amended and Restated Change of Control Agreement dated October 5,
2007
Matritech,
Inc. (the “ Company ”) and Stephen D. Chubb
(“Executive”) hereby enter into this Amended and
Restated Change of Control Agreement
(“Agreement”), effective on the date of closing of
a transaction whereby the Company sells substantially all its
assets to a subsidiary of Inverness Medical Innovations, Inc.
(the “Effective Date”). This Agreement
replaces and supersedes, effective as of the Effective Date,
the original Change of Control Agreement between the parties
dated March 16, 2006.
Whereas,
the Company has entered into an agreement for the sale of
substantially all of its assets to a subsidiary of Inverness
Medical Innovations, Inc.; and
Whereas,
it is in the best interests of the Company’s
stockholders that assets be preserved for distribution to
them; and
Whereas,
both parties are amenable to changing the terms of the
original change of control agreement in accordance with the
provisions hereof.
Now,
Therefore, in consideration of the premises and for good and
valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the parties agree as
follows:
1.
Purpose. The Company considers it
essential to the best interests of its stockholders to foster
the continuous and dedicated employment of its executive
officers and other key management personnel. The
Compensation Committee of Board of Directors of the Company
recognizes, however, that competition for key management
personnel is keen and that, as a small publicly held
corporation, the Company may face special challenges in
ensuring the continued commitment of its
management. To assist in ensuring that executive
officers and other key management personnel do not become
distracted or consider leaving the employ of the Company due
to concerns about their employment security in the event of a
possible Change in Control (as defined in Section 2 hereof),
the Committee has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and
dedication of selected members of the Company’s
management, including the Executive. Nothing in
this Agreement shall be construed as creating an express or
implied contract of employment and, except as otherwise
agreed in writing between the Executive and the Company, the
Executive shall not have any right to be retained in the
employ of the Company.
2.
Definitions .
“Change
of Control Transaction” shall mean any transaction
involving the occurrence of (x) a change in the ownership of
the Company (as
defined
in section 1.409A-3(i)(5)(v) of the final regulations under
Internal Revenue Code section 409A or any similar provisions
of any successor regulations), or (y) a change in effective
control of the Company (as defined in section
1.409A-3(i)(5)(vi) of the final regulations under Internal
Revenue Code section 409A or any similar provisions of any
successor regulations) or (z) a change in the ownership of a
substantial portion of the assets of the Company (as defined
in section 1.409A-3(i)(5)(vii) of the final regulations under
Internal Revenue Code section 409A or any similar provisions
of any successor regulations).
3.
Change of Control Payments . In the event of
a Change of Control Transaction, the Executive shall receive,
in a lump sum payment paid within thirty (30) days of the
Change of Control Transaction, (i) a pro-rated incentive bonus
based on the portion of the then current fiscal year completed
at the time of the Change of Control Transaction compared to
the Executive’s target annual bonus for such year and
(ii) all deferred compensation, if any, then maintained in the
Executive’s account, including without limitation all
restricted stock issued pursuant to the Amended and Restated
Management Bonus Plan, whether or not otherwise vested, and
all other restricted stock which by the terms of the
individual restricted stock award agreement is to be vested
upon an Acquisition (as defined in such individual
agreements). All payments to be made by the Company
un
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