CHANGE OF CONTROL AGREEMENT

Exhibit 10.2   CHANGE OF CONTROL AGREEMENT   This CHANGE OF CONTROL AGREEMENT (this “Agreement”) is made and entered into as of October 24, 2008, by and between IR BioSciences Holdings, Inc., a Delaware corporation (the “Company”) and Hal Siegel (the “Executive”).   RECITALS   WHEREAS, Executive is the Vice-President and Chief Scientific Officer of the Company;   WHEREAS, Board recognizes the possibility of a future Change of Control (as hereinafter defined), which may alter the nature and structure of Company, and recognizes that the uncertainty regarding the consequences of such an event adversely affects Company’s ability to retain Executive;   WHEREAS, in order to induce Executive to retain employment with the Company, the Board and Company desire to provide benefits to Executive in the event Executive’s employment is terminated under certain circumstances involving a Change of Control, and the Executive desires to be so induced; and   WHEREAS, Company and Executive desire to set forth in writing the terms and conditions of their agreement with respect to Company’s provision of benefits to Executive in the event Executive’s employment is terminated under certain circumstances involving a Change of Control.   AGREEMENT   NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained, it is mutually agreed between the parties hereto as follows:   1. Term.  This Agreement shall commence on the Execution Date of this Agreement and shall continue until the earlier of the following:  (a) prior to a Change of Control Date, the date of termination of Executive’s employment with Company; or (b) subsequent to a Change of Control Date the earlier of (x) the date of termination of Executive’s employment with the Company absent Involuntary Termination or (y) the one-year anniversary of a Change of Control Date.   2. At-Will Status.  Notwithstanding any provision of this Agreement, Executive is employed at-will , so that Executive, on the one hand,  or Company, on the other hand, may terminate Executive’s employment at any time, with or without notice, for any or no reason.    

  3. Definitions.  As used in this Agreement, the following terms shall have the meanings set forth herein:   “Affiliate” means any entity that is part of a controlled group of corporations or is under common control with Company, as applicable, within the meaning of Sections 1563(a), 404(b) or 414(c) of the Code.   “Board” means the Board of Directors of Company.   “Cause” shall mean (i) a material act of dishonesty in connection with the Executive’s responsibilities as an Executive of Company; (ii) the Executive’s conviction of, or plea of nolo contendere to, a felony or a crime involving moral turpitude, (iii) the Executive’s gross misconduct which has a material adverse effect on the Company, or (iv) the Executive’s consistent and willful failure to perform his or her employment duties where such failure is not cured within thirty (30) days after written notice to Executive by Company.    “Change of Control” shall mean a Company Change in Control.   “Change of Control Date” means the date on which a Change of Control occurs.  If any such change in control occurs on account of a series of transactions, the “Change of Control Date” is the date of the last of such transactions.   “Code” means the Internal Revenue Code of 1986, and any amendments thereto.   “Company Acquiring Person” means that a Person, considered alone or as part of a “group” within the meaning of Section 13(d)(3) of the Exchange Act, as amended, other than an Initial Member or any Affiliate, is or becomes directly or indirectly the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of securities representing more than fifty percent (50%) of the Company’s then outstanding securities entitled to vote generally in the election of the Board.   “Company Change in Control” means (i) a Person is or becomes a Company Acquiring Person; (ii) holders of the securities of Company entitled to vote thereon approve any agreement with a Person, (or, if such approval is not required by applicable law and is not solicited by Company, the closing of such an agreement) that involves the transfer of all or substantially all of Company’s assets on a consolidated basis; (iii) holders of the securities of Company entitled to vote thereon approve a transaction (or, if such approval is not required by applicable law and is not solicited by the Company, the closing of such a transaction) pursuant to which Company will undergo a merger, consolidation, statutory share exchange or similar event with a Person, regardless of whether Company is intended to be the surviving or resulting entity after the merger, consolidation, statutory share exchange or similar event, other than a transaction that results in the voting securities of Company carrying the right to vote in elections of persons to the Board outstanding immediately prior to the closing of the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% (fifty percent) of Company’s voting securities carrying the right to vote in elections of persons to Company’s Board, or voting securities of such surviving entity carrying the right to vote in elections of persons to the Board of Directors or similar authority of such surviving entity, outstanding immediately after the closing of such transaction; (iv) the Continuing Directors cease for any reason to constitute at least half of the number of members of the Board; (v) holders of the securities of Company entitled to vote thereon approve a plan of complete liquidation of Company or an agreement for the liquidation by the Company of all or substantially all of Company’s assets (or, if such approval is not required by applicable law and is not solicited by Company, the commencement of actions constituting such a plan or the closing of such an agreement); or (vi) the Board adopts a resolution to the effect that, in its judgment, as a consequence of any one or more transactions or events or series of transactions or events, a change in control of Company has effectively occurred.  Notwithstanding the foregoing, no event resulting from an initial public offering of securities of Company shall constitute a Company Change in Control.  The Board shall be entitled to exercise its discretion in exercising its judgment and in the adoption of such resolution, whether or not any such transaction(s) or event(s) might be deemed, individually or collectively, to satisfy any of the criteria set forth in subparagraphs (i) through (v) above.  

  “Continuing Director” means any member of the Board (i) who was a member of the Board on the date hereof, or (ii) whose nomination for or election to the Board was recommended or approved by a majority of the Continuing Directors.   “Control” (and “Controlling” and “Controlled”) shall mean possession, directly or indirectly, of the power to direct or cause the direction of management policies of such Entity through the ownership of voting securities or by contract.   “Constructive Termination”  means Executive’s voluntary termination, upon thirty (30) days’ prior written notice to the Company, following:  (A) Executive being designated to a divisional as opposed to corporate role with the Company or Operating Company; (B) a material reduction or change in job duties, responsibilities and requirements, including, without limitation, any material increase in travel responsibilities, inconsistent with Executive’s position with Company and Executive’s duties, responsibilities and requirements; (C) any reduction of Executive’s base compensation or inactive pay (bonus); or (D) Executive’s refusal to relocate to a facility or location more than fifty (50) miles from Company’s current headquarters.   “Entity” means any corporation, firm, unincorporated organization, association, partnership, limited partnership, limited liability company, limited liability partnership, business trust, joint stock company, joint venture organization, entity or business.   “Exchange Act” means the Securities Exchange Act of 1934, as amended.   “Involuntary Termination” shall mean, at any time within that period which is one-year from the Change of Control Date (including such date), the termination of the employment of Executive (i) by Company without Cause or (ii) due to Constructive Termination.   “Person” means any human being, firm, corporation, partnership, or other entity.  “Person” also includes any human being, firm, corporation, partnership, or other entity as defined in sections 13(d)(3) and 14(d)(2) of the Exchange Act.  The term “Person” does not include Company or any of its Affiliates, and the term Person does not include any employee-benefit plan maintained by the Company or any of its Affiliates, or any person or entity organized, appointed, or established by the Company, or any of its Affiliates for or pursuant to the terms of any such employee-benefit plan, unless the Board determines that such an employee-benefit plan or such person or entity is a “Person”.   4. Effect of Termination.  If Executive’s employment is terminated with Company at any time for any reason, Executive shall be entitled to (i) reimbursement for final expenses that Executive reasonably and necessarily incurred on behalf of the Company prior to Executive’s termination of employment (provided that Executive submits expense reports and supporting documentation as required by Company practice or policy), (ii) unpaid compensation and benefits and (iii) unused vacation, accrued through the date of Executive’s termination of employment.  

  5. Effect of Involuntary Termination.  Only in the event of an Involuntary Termination, Executive shall be entitled to the following, subject to Section 7 hereof:   a.           continuation of Executive’s base salary in effect on the date of such Involuntary Termination for a period of eighteen (18) months from the date of termination (the “Payment Period”), payable in accordance with the Operating Company’s prevailing compensation practice, as such practice may be modified from time to time;   b.           Notwithstanding any provision of any