[ DATE ]
[ NAME ]
[ ADDRESS ]
Subject: Alsius Corporation Change in Control Severance Plan
Participation Notice
Dear
[ NAME
]
:
The
Company has selected you to be a Covered Employee in the
Alsius Corporation Change in Control Severance Plan (the
“Plan”). This letter is your Change in
Control Severance Plan Participation Notice (the "Agreement")
as defined in the Plan. A copy of the Plan (and its
Summary Plan Description) is enclosed with this
Agreement. Certain terms defined in the Plan are
used in this Agreement.
As
a Covered Employee, if there is a Qualifying Termination and
if you timely execute and do not revoke the Release and you
remain in full compliance with the Plan and this Agreement,
then you will receive the severance benefits described in
Section 1 below .
Separately, as of your Termination Date, you shall also be
paid for your accrued but unpaid salary and vacation,
unreimbursed valid business expenses that were submitted in
accordance with Company policies and procedures, and you are
eligible for other vested benefits pursuant to the express
terms of any employee benefit plan.
This
Agreement is personal in nature and your right to receive
payments hereunder is not assignable, transferable or
delegable, whether by pledge, creation of a security interest,
or otherwise, other than by a transfer by your will or by the
laws of descent and distribution. All provisions of
this Agreement are subject to and governed by the terms of the
Plan.
1.
Severance Benefits. The Company shall pay you
cash in three monthly installments with each installment equal to
one-twelfth of your annual base salary with the first such
installment payable on the first business day of the month
following the effective date of the Release. In
addition, for the three month period commencing with the month
following the month of the Termination Date, the Company shall
continue to provide to you all Employee Benefits which were
received by, or with respect to, you as of the Termination Date, at
the same expense to you as before the Change in Control subject to
immediate cessation if you are offered other employee benefits
coverage in connection with new employment. You shall
provide advance written notice to the Company informing the Company
when you are offered or become eligible for other employee benefits
in connection with new employment. In addition, if
periodically requested by the Company, you will provide the Company
with written confirmation that you have not been offered other
employee benefits. All payments and benefits made under
this Agreement shall be subject to reduction to reflect any
withholding taxes or other amounts required by applicable law or
regulation. In addition, to the extent you receive
severance or similar payments and/or benefits under any other
Company plan, program, agreement, policy, practice, or the like, or
under the WARN Act or similar state law, the payments and benefits
due to you under this Agreement will be correspondingly reduced on
a dollar-for-dollar basis (or vice-versa) in a manner that complies
with Internal Revenue Code Section 409A.
2.
Defined Terms :
"Cause"
means any of the following, each as determined in the
discretion of the Company's (or its successor's) Board of
Directors or Chief Executive Officer: (i) the Covered Person's
dereliction of his or her duties, (ii) the Covered Person's
material violation of Company policy, or (iii) the Covered
Person's conviction of, or guilty plea to, a crime against the
Company or one which reflects negatively on the reputation of
the Company.
"Change
in Control" means any of the following transactions, provided,
however, that the Company shall determine under parts (iv) and
(v) whether multiple transactions are related, and its
determination shall be final, binding and
conclusive:
(i)
a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal
purpose of which is to change the state in which the Company
is incorporated;
(ii)
the sale, transfer or other disposition of all or
substantially all of the assets of the Company;
(iii)
the complete liquidation or dissolution of the
Company;
(iv)
any reverse merger or series of related transactions
culminating in a reverse merger (including, but not limited
to, a tender offer followed by a reverse merger) in which the
Company is the surviving entity but (A) the shares of Common
Stock outstanding immediately prior to such merger are
converted or exchanged by virtue of the merger into other
property, whether in the form of securities, cash or
otherwise, or (B) in which securities possessing more than
forty percent (40%) of the total combined voting power of the
Company’s outstanding securities are transferred to a
person or persons different from those who held such
securities immediately prior to such merger or the initial
transaction culminating in such merger, but excluding any such
transaction or series of related transactions that the Company
determines shall not be a Change in Control; or
(v)
acquisition in a single or series of related transactions by
any person or related group of persons (other than the Company
or by a Company-sponsored employee benefit plan) of beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange
Act) of securities possessing more than fifty percent (50%) of
the total combined voting power of the Company’s
outstanding securities but excluding any such transaction or
series of related transactions that the Company determines
shall not be a Change in Control.
"Company"
means Alsius Corporation, a Delaware corporation.
"Disability"
means that you are unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months.
"Employee
Benefits" means any group health and dental benefit plans
provided, however, that Employee Benefits shall not include
contributions made by the Company to any retirement plan,
pension plan or profit sharing plan for the benefit of you in
connection with amounts earned by you.
"Exchange
Act" means the Securities Exchange Act of 1934, as
amended.
"Qualifying
Termination" means that the Company has terminated your
employment for any reason other than Cause, death or
Disability and where your Termination Date occurred during the
twelve month period immediately following a Change in
Control.
"Release"
means a general
release of claims and covenant not to sue substantially in the
form attached hereto as Exhibit A (or as may be reasonably
modified by the Company in its reasonable
discretion). Such release must become effective
within sixty days after the Termination Date or else you will
be deemed to have waived all rights to any payments or
benefits under this Agreement.
"Termination
Date" mean
