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CHANGE IN CONTROL AGREEMENT

Change of Control Agreement

CHANGE IN CONTROL AGREEMENT | Document Parties: INTERLINK ELECTRONICS INC You are currently viewing:
This Change of Control Agreement involves

INTERLINK ELECTRONICS INC

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Title: CHANGE IN CONTROL AGREEMENT
Governing Law: California     Date: 10/4/2007
Industry: Computer Peripherals     Sector: Technology

CHANGE IN CONTROL AGREEMENT, Parties: interlink electronics inc
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Exhibit 10.3

CHANGE IN CONTROL AGREEMENT

 

Charles C. Best, Jr.

  “Officer”  

Interlink Electronics, Inc.,

  “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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