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Exhibit
10.3
CHANGE IN CONTROL
AGREEMENT
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Charles C. Best, Jr.
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“Officer” |
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Interlink Electronics, Inc.,
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“Company” |
Interlink Electronics, Inc.,
a Delaware corporation (the “ Company ”),
considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best
interest of the Company and its stockholders. In this connection,
the Company recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may exist and
that such possibility, and the uncertainty and questions which it
may raise among management, may result in the departure or
distraction of management personnel to the detriment of the Company
and its stockholders. Accordingly, the Board of Directors of the
Company (the “ Board ”) has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the
Company’s management to their assigned duties without
distraction in circumstances arising from the possibility of a
change in control of the Company.
This Agreement, when executed
by the parties hereto, supersedes and replaces that certain
agreement, dated as of January 10, 2006, by and between the
parties relating to the same subject matter and upon such
execution, such former agreement shall be null and void and of no
effect.
In order to induce Officer to
remain in the employ of the Company, this Agreement, the form of
which has been approved by the Board, sets forth the severance
benefits which the Company agrees will be provided to Officer in
the event Officer’s employment with the Company is terminated
in connection with a “Change in Control” of the Company
under the circumstances described below.
1. Employment at Will;
Agreement to Provide Services; Right to Terminate.
(i) Except as otherwise
provided in paragraph (ii) below, the Company or Officer may
terminate Officer’s employment at any time, subject to the
provisions of any employment agreement (including this Agreement)
between Officer and the Company and the Company’s providing
the benefits in accordance with the terms of this Agreement and all
other legally mandated benefits, whether statutory or contractual
in nature.
(ii) In the event of a
Potential Change in Control of the Company as defined in
Section 4, Officer agrees that Officer will not leave the
employ of the Company (other than as a result of Disability, upon
Retirement or for Good Reason, as such terms are defined in
Section 4), and will render the services contemplated in the
recitals to this Agreement until the earliest of (A) a date
which is 270 days from the occurrence of such Potential Change
in Control of the Company or (B) a termination of
Officer’s employment pursuant to which Officer becomes
entitled under this Agreement to receive the benefits provided in
Section 6.
2. Effective Date .
The effective date of this Agreement is September 28, 2007
(the “ Effective Date ”).
3. Term of Agreement .
This Agreement shall commence on the Effective Date and shall
continue in effect until December 31, 2007; provided ,
however , that commencing on the first day of the new year
following the Effective Date and each January 1 thereafter,
the term of this Agreement shall automatically be extended for one
additional year unless at least 90 days prior to such
January 1 date, the Company or Officer shall have given notice
that this Agreement shall not be extended (provided that no such
notice may be given by the Company during the pendency of a
(i) Potential Change in Control or (ii) Change in
Control); and provided, further, that this Agreement shall continue
in effect for a period of 12 months beyond the term provided herein
if a Change in Control of the Company, as defined in
Section 4, shall have occurred during such term.
Notwithstanding anything in this Section 3 to the contrary,
this Agreement shall terminate if Officer or the Company terminate
Officer’s employment in a manner consistent with
Section 1(i). In addition, the Company may terminate this
Agreement during Officer’s employment if, prior to a
Potential Change in Control or Change in Control, Officer ceases to
hold Officer’s current position with the Company, except by
reason of a promotion.
4. Definitions . The
following terms shall have the following meanings for purposes of
this Agreement:
(i) “ Cause
” shall mean
(A) the willful and continued
failure by Officer substantially to perform Officer’s
reasonably assigned duties with the Company consistent with those
duties assigned to Officer, other than a failure resulting from
Officer’s incapacity due to physical or mental illness, after
a written demand for performance has been delivered to Officer by
the Chief Executive Officer or the Chairman of the Board which
specifically identifies the manner in which the Chairman or the CEO
believes that Officer has not substantially performed
Officer’s duties and is not or cannot be cured within thirty
days after such written demand;
(B) the conviction of guilty
or entering of a nolo contendere plea to a felony, which is
materially and demonstrably injurious to the Company; or
(C) the commission of an act
by Officer, or the failure by Officer to act, which constitutes
gross negligence or gross misconduct.
For purposes of this
Section 4(i), no act, or failure to act, on Officer’s
part shall be considered “willful” unless done, or
omitted, by Officer in bad faith. Any act, or failure to act,
expressly authorized by a resolution duly adopted by the Board or
based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or be an omission, by Officer in
good faith. Notwithstanding the foregoing, Officer shall not be
deemed to have been terminated for Cause unless the Company shall
have delivered to Officer a copy of a resolution duly adopted by
the Board finding, after reasonable notice to Officer and an
opportunity for Officer to be heard with respect to such matter,
that in the good faith opinion of the Board, Officer has engaged in
the conduct set forth above in (A), (B), or (C) of this
Section 4(i). Any such determination by the Board shall be
subject to de novo review in mediation or in arbitration conducted
pursuant to Section 15.
(ii) “ Change in
Control ” of the Company shall mean the occurrence of any
of the following events:
(A) any consolidation,
merger, plan of share exchange, or other reorganization involving
the Company (a “ Merger ”) as a result of which
the holders of
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outstanding securities of the
Company ordinarily having the right to vote for the election of
directors (“ Voting Securities ”) immediately
prior to the Merger do not continue to hold at least 50% of the
combined voting power of the outstanding Voting Securities of the
surviving or continuing corporation immediately after the Merger,
disregarding any Voting Securities issued or retained by such
holders in respect of securities of any other party to the
Merger;
(B) any sale, lease, exchange
or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, the assets of the
Company;
(C) the adoption of any plan
or proposal for the liquidation or dissolution of the
Company;
(D) at any time during a
period of two consecutive years, individuals who at the beginning
of such period constituted the Board (“ Incumbent
Directors ”) shall cease for any reason to constitute at
least a majority thereof, unless each new director elected during
such two-year period was nominated or elected by two-thirds of the
Incumbent Directors then in office and voting (with new directors
nominated or elected by two-thirds of the Incumbent Directors also
being deemed to be Incumbent Directors); or
(E) any Person (as defined
below) shall have become the beneficial owner (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934 (the
“ Exchange Act ”)), directly or indirectly, of
securities of the Company ordinarily having the right to vote for
the election of directors representing 50% or more of the combined
voting power of the then outstanding Voting Securities.
Notwithstanding anything in
the foregoing to the contrary, unless otherwise determined by the
Board, no Change in Control shall be deemed to have occurred for
purposes of this Agreement if (1) Officer acquires (other than
on the same basis as all other holders of the Company shares) an
equity interest in an entity that acquires the Company in a Change
in Control otherwise described under Section 4(ii)(A) or
(B) above, or (2) Officer is part of group that
constitutes a Person which becomes a beneficial owner of Voting
Securities in a transaction that otherwise would have resulted in a
Change in Control under Section 4(ii)(E) above.
(iii) “ Deemed
Performance Amount ” shall mean the sum of all cash
compensation paid or payable to Officer based on performance
measures with respect to each of the last three complete calendar
years divided by three; provided, however, that, if Officer has not
been employed by the Company for all of the last three complete
calendar years, the amount shall be the sum of all cash
compensation paid or payable to Officer based on performance
measures with respect to each of the complete calendar years for
which Officer has been so employed divided by the number of such
complete calendar years.
(iv) “
Disability ” shall mean the absence of Officer from
Officer’s duties with the Company on a full time basis for
180 consecutive days as a result of Officer’s incapacity due
to physical or mental illness, unless, within 30 days after a
Notice of Termination (as defined below) is given to Officer
following such absence, Officer shall have returned to the full
performance of Officer’s duties.
(v) “ Good
Reason ” shall mean:
(A) a diminution of
Officer’s status, title, position(s), or responsibilities
from Officer’s status, title, position(s), and
responsibilities as in effect immediately prior to the Potential
Change in Control or Change in Control, or the assignment to
Officer of any duties or responsibilities which are inconsistent
with such status, title, position(s), or responsibilities (in
either case other than isolated, insubstantial or inadvertent
actions which are remedied after notice), or any removal of Officer
from such position(s), except in connection with the termination of
Officer’s employment for Cause, Disability or as a result of
Officer’s death or voluntarily by Officer other than for Good
Reason;
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(B) a substantial reduction
by the Company in Officer’s rate of base salary, bonus or
incentive opportunity or a substantial reduction in benefits (other
than reductions that do not impact optionee’s compensation
opportunity, taken as a whole, or a reduction in benefits
applicable to substantially all officers);
(C) the Company’s
requiring Officer to be based more than 100 miles from the
principal office at in which Officer is based immediately prior to
the Potential Change in Control or Change in Control, except for
reasonably required travel on the Company’s business;
or
(D) the Company’s
failure to obtain a consent requested by Officer pursuant to
Section 8(i) of this Agreement.
(vi) “ Potential
Change in Control ” of the Company shall mean the
occurrence of any of the following:
(A) the Company enters into
an agreement, the approval of which by t
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