EXHIBIT 10.4
ANIKA THERAPEUTICS, INC.
CHANGE IN CONTROL, BONUS AND SEVERANCE AGREEMENT
AGREEMENT made as of April 26, 2000 by and among Anika Therapeutics, Inc., a
Massachusetts corporation with its principal place of business in Woburn,
Massachusetts (the "Company"), and Charles H. Sherwood of Sudbury, Massachusetts
(the "Executive"), an individual presently employed as the Vice President of
Research and Development of the Company.
1. PURPOSE. The Company considers it essential to the best interests of
its stockholders to foster the continuous employment of key management
personnel. The Board of Directors of the Company (the "Board") recognizes,
however, that, as is the case with many publicly held corporations, the
possibility of a Change in Control (as defined in Section 2 hereof) exists 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. Therefore, 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, including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control. Nothing in this Agreement shall be construed
as creating an express or implied contract of employment and, except as
otherwise agreed in writing between the Executive and the Company, the Executive
shall not have any right to be retained in the employ of the Company.
2. CHANGE IN CONTROL. A "Change in Control" shall mean the occurrence of
any one of the following events:
(a) any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Act") (other than the Company, any
of its subsidiaries, any trustee, fiduciary or other person or entity
holding securities under any employee benefit plan or trust of the Company
or any of its subsidiaries), together with all "affiliates" and "associates"
(as such terms are defined in Rule 12b-2 under the Act) of such person,
shall become the "beneficial owner" (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 51% or more of the combined voting power of the Company's then
outstanding securities having the right to vote in an election of the
Company's Board of Directors ("Voting Securities"); or
(b) persons who, as of the date hereof, constitute the Company's Board
of Directors (the "Incumbent Directors") cease for any reason, including,
without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent to
the date hereof whose election or nomination for election was approved by
a vote of at least a majority of the Incumbent Directors shall, for
purposes of this Agreement, be considered an Incumbent Director; or
(c) the stockholders of the Company shall approve (A) any consolidation
or merger of the Company where the shareholders of the Company, immediately
prior to the consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is defined in
Rule 13d-3 under the Act), directly or indirectly, shares representing in
the aggregate 51% of the voting shares of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (B) any sale, lease, exchange or other transfer (in
one transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of the
Company or (C) any plan or proposal for the liquidation or dissolution of
the Company.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed
to have occurred for purposes of the foregoing clause (a) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of shares of Voting Securities outstanding, increases the
proportionate voting power represented by the Voting Securities beneficially
owned by any person to 51% or more of the combined voting power of all then
outstanding Voting Securities; provided, however, that if any person referred
to in this sentence shall thereafter become the beneficial owner of any
additional shares of Voting Securities (other than pursuant to a share split,
stock dividend or similar transaction or direct purchase from the Company),
then a "Change in Control" shall be deemed to have occurred for purposes of
the foregoing clause (a).
3. TERMINATING EVENT. A "Terminating Event" shall mean any of the events
provided in this Section 3 occurring within twelve (12) months subsequent to a
Change in Control as defined in Section 2:
(a) termination by the Company of the employment of the Executive with
the Company for any reason other than for Cause or the death of the
Executive. "Cause" shall mean, and shall be limited to, the occurrence of
any one or more of the following events:
(i) a willful act of dishonesty by the Executive with respect to any
matter involving the Company;
(ii) conviction of the Executive of a crime involving moral
turpitude; or
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(iii) the deliberate or willful failure by the Executive (other than
by reason of the Executive's physical or mental illness, incapacity or
disability) to substantially perform the Executive's duties with the
Company and the continuation of such failure for a period of 30 days
after delivery by the Company to the Executive of written notice
specifying the scope and nature of such failure and its intention to
terminate the Executive for Cause.
A Terminating Event shall not be deemed to have occurred pursuant to
this Section 3(a) solely as a result of the Executive being an employee of
any direct or indirect successor to the business or assets of the Company,
rather than continuing as an employee of the Company following a Change in
Control.
(b) termination by the Executive of the Executive's employment with the
Company for Good Reason. "Good Reason" shall mean the occurrence of any of
the following events:
(i) a substantial adverse change in the nature or scope of the
Executive's responsibilities or duties from the responsibilities or
duties exercised by the Executive immediately prior to the Change in
Control, it being understood by the parties hereto, that so long as the
Executive retains primary research, development and engineering
responsibilities for the business conducted by Anika immediately prior to
the Change in Control, Good Reason shall not exist under this Section
3(b)(i); or
(ii) a reduction in the Executive's annual base salary and/or
benefits as in effect on the date hereof or as the same may be increased
from time to time except for across-the-board salary and/ or benefits
reductions similarly affecting all or substantially all management
employees.
For purposes of this Section 3, unless the context otherwise requires,
Company shall mean the Company or any successor thereto or to the business
thereof in a transaction involving a Change in Control.
4. SPECIAL TERMINATION PAYMENTS. In the event a Terminating Event occurs
within twelve (12) months after a Change in Control in lieu of any payments
under the Employment Letter (as hereinafter defined),
(a) the Company shall pay to the Executive, in addition to the payment,
if any, required by Section 5, an amount equal to 100% of the Executive's
annual salary as in effect immediately prior to the Change in Control, said
amount shall be paid in
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one lump sum payment no later than thirty-one (31) days following the
Date of Termination (as such term is defined in Section 9(b)); and
(b) the Company shall continue to provide health, dental, long-term
disability, life insurance and other fringe benefits to the Executive, on
the same terms and conditions (including any required co-payments) as though
the Executive had remained an active employee, for twelve (12) months; and
(c) the Company shall provide COBRA benefits to the Executive following
the end of the period referred to in Section 4(c) above, such benefits to be
determined as though the Executive's employment had terminated at the end of
such period.
5. PAYMENT UPON EFFECTIVE DATE OF CHANGE IN CONTROL. Upon the effective
date of a Change in Control, regardless of whether a Terminating Event has
occurred, in addition to any other payment required by Section 4, the Company
shall pay the Executive an amount in cash representing fifty percent (50%) of
the Executive's annual salary as in effect immediately prior to the Change in
Control. Said amount shall be paid in one lump sum payment no later than
thirty-one (31) days following the effective date of a Change in Control.
6. CERTAIN LIMITATIONS. It is the intention of the Executive and of the
Company that no payments by the Company to or for the benefit of the Executive
under this Agreement or any other agreement or plan, if any, pursuant to which
the Executive is entitled to receive payments or benefits shall be nondeductible
to the Company by reason of the operation of Section 280G of the Code relating
to parachute payments or any like statutory or regulatory provision.
Accordingly, and notwithstanding any other provision of this Agreement or any
such agreement or plan, if by reason of the operation of said Section 280G or
any like statutory or regulatory provision, any such payments exceed the amount
which can be deducted by the Company, such payments shall be reduced to the
maximum amount which can be deducted by the Company. To the extent that payments
exceeding such maximum deductible amount have been made to or for the benefit of
the Executive, such excess payments shall be refunded to the Company with
interest thereon at the applicable Federal rate determined under Section 1274(d)
of the Code, compounded annually, or at such other rate as may be required in
order that no such payments shall be nondeductible to the Company by reason of
the operation of said Section 280G or any like statutory or regulatory
provision. To the extent that there is more than one method of reducing the
payments to bring them within the limitations of said Section 280G or any like
statutory or regulatory provision, the Executive shall determine which method
shall be followed, provided that if the Executive fails to make such
determination within forty-five (45) days after the Company has given notice of
the need for such reduction, the Company may determine the method of such
reduction in its sole discretion.
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7. TERM. This Agreement shall take effect on the date first set forth
above and shall terminate upon the earliest of (a) the termination by the
Company of the employment of the Executive for Cause; (b) the cessation of the
Executive's employment with the Company for any reason or the resignation or
termination of the Executive for any reason, in each case, prior to a Change in
Control; or (c) the resignation of the Executive after a Change in Control for
any reason other than for Good Reason.
8. WITHHOLDING. All payments made by the Company under this Agreement
shall be net of any tax or other amounts required to be withheld by the Company
under applicable law.
9. NOTICE AND DATE OF TERMINATION; DISPUTES; ETC.
(a) Notice of Termination. After a Change in Control and during the term
of this Agreement, any purported termination of the Executive's employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other party hereto in accordance
with this Section 9. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and the Date of
Termination. Further, a Notice of Termination for Cause is required to
include a copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the entire membership of the Board (exclusive of the
Executive) at a meeting of the Board (after reasonable notice to the
Executive and an opportunity for the Executive, accompanied by the
Executive's counsel, to be heard before the Board) finding that, in the
good faith opinion of the Board, the termination met the criteria for Cause
set forth in Section 3(a) hereof.
(b) Date of Termination. "Date of Termination," with respect to any
purported termination of the Executive's employment after a Change in
Control and during the term of this Agreement, shall mean the date specified
in the Notice of Termination. In the case of a termination by the Company
other than a termination for Cause (which may be effective immediately), the
Date of Termination shall not be less than 30 days after the Notice of
Termination is given. In the case of a termination by the Executive, the
Date of Termination shall not be less than 15 days from the date such Notice
of Termination is given. Notwithstanding Section 3(a) of this Agreement, in
the event that the Executive gives a Notice of Termination to the Company,
the Company may unilaterally accelerate the Date of Termination and such
acceleration shall not result in a second Terminating Event for purposes of
Section 3(a) of this Agreement.
(c) No Mitigation. The Company agrees that, if the Executive's
employment by the Company is terminated during the term of this Agreement,
the Executive is not required to seek other employment or to attempt in any
way to reduce
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any amounts payable to the Executive by the Company pursuant to Sections
4 and 5 hereof. Further, the amount of any payment provided for in this
Agreement shall not be reduced by any compensation earned by the
Executive as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the
Executive to the Company, or otherwise.
(d) Mediation of Disputes. The parties shall endeavor in good faith to
settle within 90 days any controversy or claim arising out of or relating to
this Agreement or the breach thereof through mediation with
J.A.M.S./Endispute or similar organizations. If the controversy or claim is
not resolved within 90 days, the parties shall be free to pursue other legal
remedies in law or equity.
10. ASSIGNMENT; PRIOR AGREEMENTS; NON-SOLICITATION. Except for an
assignment by the Company in connection with a Change in Control in which the
successor, if other than the Company, shall assume and agree to perform this
Agreement in writing, neither the Company nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party, and without
such consent any attempted transfer shall be null and void and of no effect.
This Agreement shall inure to the benefit of and be binding upon the Company and
the Executive, their respective successors, executors, administrators, heirs and
permitted assigns. In the event of the Executive's death after a Terminating
Event but prior to the completion by the Company of all payments due him under
Sections 4 and 5 of this Agreement, the Company shall continue such payments to
the Executive's beneficiary designated in writing to the Company prior to his
death (or to his estate, if the Executive fails to make such designation). This
Agreement supercedes all prior Agreements, whether written or oral with respect
to the subject matter hereof. Notwithstanding the foregoing: (A) that certain
Employment Letter dated April 15, 1998 by and between the Company and the
Executive, (the "Employment Letter"), shall govern any termination of the
Executive's employment with the Company (i) prior to the effective date of a
Change in Control or (ii) following the expiration of twelve (12) months after a
Change in Control; this Agreement shall govern in the event of any termination
of Executive's employment with the Company within twelve (12) months after a
Change in Control; and (B) that certain Non-Disclosure and Non-Competition
Agreement of May 4, 1998 by and between Executive and the Company shall remain
in full force and effect in accordance with its terms.
Executive covenants to the Company that during his employment with the
Company and until one (1) year from the date he is no longer employed by the
Company, any affiliate thereof or any successor thereto, he will not in any
manner, on his own behalf, or as a partner, officer, director, employee, agent
or entity, directly or indirectly, induce or attempt to influence any person
serving as an employee of the Company or any successor thereto to leave its
employ or hire any such person.
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11. ENFORCEABILITY. If any portion or provision of this Agreement shall to
any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
12. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
13. NOTICES. Any notices, requests, demands, and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by registered or certified mail, postage prepaid, to the
Executive at the last address the Executive has filed in writing with the
Company, or to the Company at its main office, attention of the Board of
Directors.
14. EFFECT ON OTHER PLANS. Except as provided in Section 10 hereof,
nothing in this Agreement shall be construed to limit the rights of the
Executive under the Company's benefit plans, programs or policies.
15. AMENDMENT. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by a duly authorized representative of
the Company.
16. GOVERNING LAW. This is a Massachusetts contract and shall be construed
under and be governed in all respects by the laws of the Commonwealth of
Massachusetts.
17. OBLIGATIONS OF SUCCESSORS. In addition to any obligations imposed by
law upon any successor to the Company, the Company will use its commercially
reasonable efforts to require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company by their duly authorized officers and by the Executive, as of the
date first above written.
COMPANY:
ANIKA THERAPEUTICS, INC.
By: /s/ J. MELVILLE ENGLE
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J. Melville Engle
President and Chief Executive Officer
EXECUTIVE:
/s/ CHARLES H. SHERWOOD
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Charles H. Sherwood