WWW.EXFILE.COM, INC. -- 14230 -- MATRITECH, INC. -- EXHIBIT 10.1 TO FORM 8-K


    EXHIBIT
      10.1


     

    Change
      of Control Agreement

     

    Agreement
      (“Agreement”) made this __ day of _____, 200_ by and between Matritech, Inc.,
      Delaware corporation with a principal place of business at 330 Nevada Street,
      Newton, MA 02460 (the “Company”) and ________________, an individual residing at
      ______________ (the “Executive”).

    


    1.     Purpose.
      The
      Company considers it essential to the best interests of its stockholders to
      foster the continuous and dedicated employment of its executive officers and
      other key management personnel. The Compensation Committee of Board of Directors
      of the Company recognizes, however, that competition for key management
      personnel is keen and that, as a small publicly held corporation, the Company
      may face special challenges in ensuring the continued commitment of its
      management. To assist in ensuring that executive officers and other key
      management personnel do not become distracted or consider leaving the employ
      of
      the Company due to concerns about their employment security in the event of
      a
      possible Change in Control (as defined in Section 2 hereof), the Committee
      has
      determined that appropriate steps should be taken to reinforce and encourage
      the
      continued attention and dedication of selected members of the Company’s
      management, including the Executive. 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.     Definitions.
      

    


    (a)      “Change
      of Control Transaction” shall mean any transaction involving the occurrence of
      (x) a change in the ownership of the Company (as defined in section
      1.409A-3(g)(5)(v) of the proposed regulations under Internal Revenue Code
      section 409A or any similar provisions of any successor regulations), or (y)
      a
      change in effective control of the Company (as defined in section
      1.409A-3(g)(5)(vi) of the proposed regulations under Internal Revenue Code
      section 409A or any similar provisions of any successor regulations) or (z)
      a
      change in the ownership of a substantial portion of the assets of the Company
      (as defined in section 1.409A-3(g)(5)(vii) of the proposed regulations under
      Internal Revenue Code section 409A or any similar provisions of any successor
      regulations). 

    


    (b)      “Good
      Reason” shall mean (a) any substantial diminution, without the Executive’s prior
      written consent, in duties and responsibilities, as in effect immediately prior
      to the Change of Control Transaction; (b) any reduction in the Executive’s base
      salary, target annual bonus or benefits as in effect on the date hereof or
      as


     

     

     

     

    
      
        
        

      

      
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    the
      same
      may be increased prior to the Change of Control Transaction, except for
      across-the-board salary or benefit reductions similarly affecting all or
      substantially all management employees; or (c) any requirement by the Company
      that the Executive perform his/her principal duties at a location more than
      50
      miles radius from the location at which the Executive performed such duties
      immediately prior to the Change of Control Transaction. 

    


    3.     Entitlement
      to Change of Control Severance Benefits.
      In the
      event the Executive’s employment with the Company is terminated by the Company
      without cause within three (3) months prior to or within twelve (12) months
      after a Change of Control Transaction (as defined herein) or in the event the
      Executive terminates his/her employment for Good Reason (as defined herein)
      within twelve (12) months after a Change of Control Transaction, the Executive
      shall receive compensation as set forth in Section 4 of this Agreement,
provided,
      however,
      that in
      order to obtain benefits following a termination by the Executive for Good
      Reason, the Executive must give written notice to the Company within 90 days
      of
      when the Executive first becomes aware of the grounds providing Good Reason
      for
      termination and further
      provided
      that the
      Executive’s entitlement, if any, to Change of Control Severance Benefits shall
      automatically cease in the event the Executive violates any covenant or
      agreement contained in Section 6 hereof or in the Non-Disclosure and Inventions
      Agreement previously executed by the Executive (or any substitute or successor
      agreement of similar import which the Executive may hereafter enter into with
      the Company).

    


    4.     Change
      of Control Severance Benefits.
      The
      compensation to be provided to the Executive by the Company if the Executive
      becomes entitled to Change of Control Severance Benefits under this Agreement
      shall include: (a) base salary at the rate in effect as of the date of
      termination or, if the Executive has terminated his/her employment for Good
      Reason due to a reduction in his or her base salary, the annual rate of base
      salary in effect immediately prior to such reduction, (b) annual bonus, in
      cash,
      at the target percentage of base salary in effect as of the date of termination
      or, if the Executive has terminated his/her employment for Good Reason due
      to a
      reduction in his or her base salary or target annual bonus, the target
      percentage of base salary in effect immediately prior to such reduction and
      (c)
      health insurance, life insurance and disability insurance received by the
      Executive as of the date of termination or, if the Executive has terminated
      his/her employment for Good Reason due to a reduction in his or her benefits,
      the benefits received by the Executive immediately prior to such reduction
      (collectively, the “Change of Control Severance Benefits”). 

    


    5.     
      Payment
      of the Change of Control Severance Benefits.
      The
      Change of Control Severance Benefits described in clauses (a), (b) and (c)
      of
      Section 4 above shall be provided to the Executive for a period of [12, 18,
      24]
      months following termination of employment; provided that such number of months
      of base salary and target annual bonus shall determine the amount of payments
      to
      be made under clauses (a) and (b) of Section 4, but the timing of payments
      shall
      be governed by this Section 5.   Payments to

     

    
      
        
        

      

      
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    be
      made
      by the Company to the Executive pursuant to clauses (a) and (b) of Section
      4
      hereof shall initially be made on whatever the then customary payment schedule
      is for compensation of executive employees of the Company (i.e. monthly,
      bi-weekly, or the like). However, all payments due under clauses (a) and (b)
      of
      Section 4 of this Agreement but not yet made on or before March 12 of the first
      calendar year following the termination which results in entitlement to the
      Change of Control Severance Benefits shall be accelerated and paid on that
      March
      12 date. 

    


    The
      payments to be made pursuant to clauses (a) and (b) of Section 4 and the
      benefits to be provided pursuant to clause (c) of Section 4 shall not be
      considered employee compensation or be subject to tax withholding by the
      Company. Rather they shall be made in exchange for the Executive’s covenant not
      to compete, as set forth in Section 6(a) hereof. If, at any time, the payments
      made pursuant to clauses (a) and (b) of Section 4 and benefits provided pursuant
      to clause (c) of Section 4 are determined by any state or federal taxing
      authority to be employee compensation, then the Company agrees to pay its share
      of FICA and Medicare tax on such payments, plus any interest or penalty that
      may
      be due as a result of the taxing authority’s determination and that relates to
      the Company’s unpaid tax. 

    


    In
      the
      event the Executive secures a new employment position during the period of
      the
      Company’s continuing payment of compensation to him/her, the Executive shall
      promptly notify the Company of the commencement of the new employment position
      and shall inform the Company of the extent to which benefits to be provided
      by
      the Company under clause (c) above are duplicative of benefits then available
      to
      the Executive through his/her new employment position. To the extent that the
      benefits to be provided by the Company hereunder are duplicative, the Company
      shall be entitled to cease provision of such benefits. Nothing contained herein
      shall, however, be construed as reducing the obligation of the Company to
      continue to make the payment due under clauses (a) and (b) of Section 4.


    


    The
      Company agrees that, if the Executive’s employment by the Company is terminated
      and the Executive becomes entitled to receive any Change of Control Severance
      Benefits hereunder, the Executive is not required to seek other employment
      or to
      attempt in any way to reduce any amounts payable to the Executive by the Company
      pursuant to Sections 5 or 7 hereof. Further, except for the possible abatement
      of fringe benefits described in clause (c) of Section 4 in the circumstances
      set
      forth in the preceding paragraph, and the possible reduction of payments as
      a
      result of the application of the provisions of Section 8 hereof, 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 self-employment or consulting, by retirement benefits, by
      disability benefits, by offset against any amount claimed to be owed by the
      Executive to the Company, or otherwise. 

    


    6.     
Non-competition;
      Non-solicitation.
      

    


    
      
        
        

      

      
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    (a)   
      Non-compete.
      The
      Executive acknowledges that he/she has gained or will gain extensive and
      valuable experience and knowledge in the business conducted by the Company
      and
      has had or will have extensive contacts with the customers, suppliers,
      investors, employees and/or consultants of the Company. The Executive recognizes
      that it is critical to the ongoing success of the Company that it preserve
      its
      goodwill and protect its proprietary rights and its other important business
      interests. 

    


    Accordingly,
      the Executive agrees that he/she will not, while employed by the Company and,
      in
      the event the Executive becomes entitled to receive Change of Control Severance
      Benefits hereunder, for the duration of time covered by the payments under
      clauses (a) and (b) of Section 4 of this Agreement (without regard to the
      acceleration of payment provisions of Section 5), directly or indirectly, engage
      in (whether as an officer, employee, consultant, director, proprietor, agent,
      partner or otherwise) or have an ownership interest in, or participate in the
      financing, operation, management or control of, any person, firm, corporation
      or
      business engaged in competition with the Company or any of its subsidiaries
      or
      affiliates in the business of development, manufacture, marketing, distribution
      and licensing of cancer diagnostic technologies, products and services. It
      is
      agreed that ownership of no more than 4.9% of the outstanding voting stock
      of a
      corporation shall not constitute a violation of this provision. In recognition
      of the fact that the Company’s business is global, the territory to which the
      restrictions contained in this Section 6(a) shall apply shall be worldwide.
      

    


    The
      Company may, in its sole discretion, waive the foregoing restrictions or their
      application in any particular circumstance and may condition any such waiver
      upon receipt of assurances satisfactory to the Company, from the Executive
      and/or others, that the Executive’s proposed activity will not adversely affect
      the Company’s goodwill, proprietary rights or other important business
      interests.

     

    (b)   
      Non-solicitation.
      The
      Executive agrees that he/she will not, while employed by the Company and, in
      the
      event the Executive becomes entitled to receive Change of Control Severance
      Benefits hereunder, for the duration of time covered by the payments under
      clauses (a) and (b) of Section 4 of this Agreement (without regard to the
      acceleration of payment provisions of Section 5), recruit or otherwise solicit,
      entice and induce (i) any persons or companies who are or have recently been
      customers, suppliers or business patronage of the Company or any of its
      subsidiaries or affiliates if such solicitation is for the purpose of, or
      results in, competition with the Company or any of its subsidiaries or
      affiliates, or (ii) any employees of the Company or any of its subsidiaries
      or
      affiliates to terminate their employment with, or otherwise cease their
      relationships with the Company or any of its subsidiaries or affiliates, in
      order to engage in any activity for any business, firm, corporation or any
      other
      entity that conducts research with respect to, develops, produces or
      manufactures any products or technologies or provides services similar to those
      developed, produced, manufactured or provided by the Company. 

     

    7.     Other
      Change of Control Payments.
      In the
      event of a Change of Control Transaction, the Executive shall receive, in a
      lump
      sum payment paid within thirty (30) days of the Change of Control Transaction,
      (i) a pro-rated incentive bonus based on the 

     

    
      
        
        

      

      
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    portion
      of the then current fiscal year completed at the time of the Change of Control
      Transaction compared to the Executive’s target annual bonus for such year and
      (ii) all deferred compensation, if any, then maintained in the Executive’s
      account, including without limitation all restricted stock issued pursuant
      to
      the Amended and Restated Management Bonus Plan, whether or not otherwise vested,
      and all other restricted stock which by the terms of the individual restricted
      stock award agreement is to be vested upon an Acquisition (as defined in such
      individual agreements). All payments to be made by the Company under this
      Section 7 shall be net of any tax or other amounts required to be withheld
      by
      the Company under applicable law. 

    


    8.     Application
      of Section 280G of the Internal Revenue Code.
      If the
      payments and benefits provided for in this Agreement, together with any other
      payments or benefits which the Executive has the right to receive from the
      Company (or any of its subsidiaries or affiliates), would constitute an “excess
      parachute payment” (as defined in Section 280G of the Internal Revenue Code) or
      would otherwise be non-deductible by the Company as a result of application
      of
      any similar statutory or regulatory provision, the Executive shall receive
      either (a) all compensation and benefits provided for him or her under this
      Agreement or (b) the maximum of compensation and benefits that will avoid an
      excess parachute payment under Section 280G, whichever would provide the greater
      after-tax benefit to the Executive. In the event that clause (b) of this Section
      8 provides the greater after-tax benefit, the Executive shall be entitled to
      select the items to be abated, provided that if the Executive fails to make
      such
      selection within forty-five (45) days after the Company has given notice of
      the
      need for such abatement, the Company may determine the method of such abatement
      in its sole discretion. If the Executive is to receive benefits under clause
      (b)
      of this Section 8 and through error or otherwise the Executive receives
      payments, together with other payments the Executive has the right to receive
      from the Company (or its affiliates or subsidiaries) in excess of 2.99 times
      the
      Executive’s base amount, the Executive agrees to immediately refund the
      overpayment to the Company, together 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 Section 280G or
      any
      similar statutory or regulatory provision. 

    


    9.     Notices.
      Any
      notice, request, demand, and other communication provided for or permitted
      by
      this Agreement shall be sufficient if in writing and delivered in person or
      sent
      by registered or certified mail, postage prepaid, or by overnight delivery
      service, 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.

     

    10.    Amendments.
      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.

    


    11.    Assignment;
      Entire Agreement.
      Except
      for an assignment by the Company in connection with a Change of Control
      Transaction in which the successor, if other than the Company, shall assume
      and
      agree to perform this Agreement in writing, 

     

    
      
        
        

      

      
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    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 he/she becomes entitled to the Change of Control
      Severance Benefits or other Change of Control Payments but prior to the
      completion by the Company of all payments due him or her under this Agreement,
      the Company shall continue such payments to the Executive’s beneficiary
      designated in writing to the Company prior to his or her death (or to his or
      her
      estate, if the Executive fails to make such designation). This Agreement
      supersedes all prior Agreements, whether written or oral with respect to the
      subject matter hereof. Notwithstanding the foregoing, the Non-Disclosure and
      Inventions Agreement executed by the Executive (or any substitute or successor
      agreement of similar import which the Executive may hereafter enter into with
      the Company) and individual restricted stock award agreements executed prior
      to
      or after this Agreement between the Executive and the Company shall remain
      in
      full force and effect in accordance with its terms.

    


    12.    Obligations
      of Successors.
      In
      addition to any obligations imposed by law upon any successor to the Company,
      the Company will use 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. 

    


    13.    
Dispute
      Resolution.
      In the
      event of any dispute between the Company and the Executive as to any claim
      arising out of or relating to this Agreement or the breach thereof, the parties
      shall endeavor in good faith to settle the dispute through mediation using
      a
      professional mediator mutually selected by them. If the dispute has not been
      resolved within 90 days, either party shall be free to pursue legal remedies,
      at
      law or in equity.

     

    14.    
Severability.
      If any
      term or provision of this Agreement is declared by a court of competent
      jurisdiction to be invalid or unenforceable for any reason, this Agreement
      shall
      remain in full force and effect, and either (a) the invalid or unenforceable
      provision shall be modified to the minimum extent necessary to make it valid
      and
      enforceable, or (b) if such a modification is not possible, this Agreement
      shall
      be interpreted as if such invalid or unenforceable provisions were not a part
      hereof.

     

    15.    
Governing
      Law and Venue. This
      Agreement shall be construed and enforced in accordance with the substantive
      law
      of the Commonwealth of Massachusetts, without giving effect to its conflicts
      of
      law principles. The parties agree that any litigation pertaining to this
      Agreement shall be maintained exclusively in the courts of general jurisdiction
      located in Massachusetts, and each party agrees to submit to the jurisdiction
      and venue of any such court. Notwithstanding the foregoing, the Company


     

    
      
        
        

      

      
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    shall
      be
      entitled to file litigation against the Executive in any jurisdiction where
      by
      Company deems it necessary or advisable to do so in order to enforce the
      provisions of Section 6 hereof. 

    


    In
      Witness Whereof, the parties have executed this Agreement as of the date first
      above written.

     

     

     

    
      	
              Matritech,
                Inc.

            	 	Executive
	 	 	 
	By:
              _________________________________	 	___________________________________
	Its _____________________________	 	 


    

    
 

          

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
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