Exhibit 10.13
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement (the
“ Agreement ”) is made and entered into by and
between [ Name ] (the “
Executive ”) and XenoPort, Inc., a Delaware
corporation (the “ Company ”), effective as of
[ Date
] , 2007.
RECITALS
It is expected that the Company from
time to time may consider the possibility of an acquisition by
another company or other change of control. The Board of Directors
of the Company (the “ Board ”) recognizes that
such consideration can be a distraction to the Executive and can
cause the Executive to consider alternative employment
opportunities. The Board has determined that it is in the best
interests of the Company and its stockholders to assure that the
Company will have the continued dedication and objectivity of the
Executive, notwithstanding the possibility, threat or occurrence of
a Change of Control (as defined below) of the Company.
The Board believes that it is in the
best interests of the Company and its stockholders to provide the
Executive with an incentive to continue [his/her] employment
and to motivate the Executive to maximize the value of the Company
upon a Change of Control for the benefit of its stockholders.
Certain capitalized terms used in the
Agreement are defined in Section 4 below.
The parties hereto agree as
follows:
1.
Term of Agreement . This Agreement shall terminate upon the
date that all obligations of the parties hereto with respect to
this Agreement have been satisfied.
2.
At-Will Employment . The Company and the Executive
acknowledge that the Executive’s employment is and shall
continue to be at-will. If the Executive’s employment
terminates for any reason, including (without limitation) any
termination prior to a Change of Control, the Executive shall not
be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may
otherwise be available in accordance with written plans or
agreements with the Company .
3.
Termination Following a Change of Control .
(a) Termination Without
Cause or Voluntary Termination For Good Reason . In the event
that a Change of Control (as defined below) of the Company occurs,
and during the period beginning on the closing date of the
transaction giving rise to such Change of Control and ending twelve
(12) months after such closing date, the Executive’s
employment with the Company (or the successor entity in such Change
of Control transaction) is either (1) terminated by the
Company (or its successor entity) without Cause (as defined below)
or (2) terminated by the Executive for Good Reason (as defined
below), then the Executive shall be entitled to receive Termination
Benefits (as defined below); provided, however , that in
order for the Executive to terminate for Good Reason, (i) the
Executive must provide written notice to the Company (or the
successor entity in the Change of
Control
transaction) of the existence of the Good Reason condition within
ninety (90) days following the initial existence of the Good
Reason condition, and (ii) the Company (or the successor
entity in the Change of Control transaction) shall not be required
to provide Termination Benefits if it is able to remedy the Good
Reason condition within a period of thirty (30) days following
such notice.
(b) Payment of Termination
Benefits . If the Executive becomes entitled to receive
Termination Benefits pursuant to Section 3(a), the continued
payments of base salary, to the extent of payments made from the
date of the Executive’s termination of employment through
March 15 of the calendar year following such termination, are
intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations and thus
payable pursuant to the “short-term deferral” rule set
forth in Section 1.409A-1(b)(4) of the Treasury Regulations;
to the extent such payments are made following said March 15,
they are intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations made upon
an involuntary termination from service and payable pursuant to
Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to
the maximum extent permitted by such provision, with any excess
amount being regarded as subject to the distribution requirements
of Section 409A(a)(2)(A) of the Internal Revenue Code of 1986,
as amended (the “Code”), including, without limitation,
the requirement of Section 409A(a)(2)(B)(i) of the Code that
payment be delayed until six (6) months after the
Executive’s termination of employment if the Executive is a
“specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code at the time of such termination.
4.
Definition of Terms . The following terms referred to in
this Agreement shall have the following meanings:
“
Cause ” shall mean either: (i) any act of
personal dishonesty taken by the Executive in connection with
[his/her] responsibilities as an Executive and intended to
result in substantial personal enrichment of the Executive;
(ii) the conviction of a felony; (iii) a willful act by
the Executive that constitutes gross misconduct and that is
injurious to the Company; or (iv) following delivery to the
Executive of a written demand for perform
