exv10w43



 





Exhibit 10.43




AMENDED AND RESTATED

CHANGE OF CONTROL AGREEMENT




     This Amended and Restated Change of Control Agreement (the “Agreement”), dated as of
February 27, 2007 (the “Effective Date”), is made by and between Avanir Pharmaceuticals, a
California corporation having its principal offices at 101 Enterprise, Suite 300, Aliso Viejo, CA
92656 (the “Company”) and Randall Kaye (“Employee”).



RECITALS




     A. Employee and the Company previously entered into a Change of Control Agreement, dated June
23, 2006, in substantially the form of this Agreement (the “Prior Agreement”).



     B. On February 27, 2007, Employee was promoted to become the Company’s Senior Vice President
and Chief Medical Officer, as a result of which Employee became eligible for greater benefits than
originally provided for under the Prior Agreement.



     C. The Company and Employee now wish to amend and restate the Prior Agreement as set forth
herein to provide Employee with the greater severance benefits for which he has become eligible.



     NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained
herein, and in consideration of the continuing employment of Employee by the Company, the parties
hereto agree as follows:



1. Definitions.




     1.1 “Awards” means Employee’s outstanding stock options, restricted stock awards,
restricted stock units, stock appreciation rights and other equity-based awards granted under the
Company Equity Plans, in each case that remain outstanding immediately following a Change of
Control.



     1.2 “Base Salary” means Employee’s gross monthly salary on the date of calculation,
excluding bonus and other incentive compensation.



     1.3 “Cause” shall, if applicable, have the meaning set forth in the definitive written
employment agreement between Employee and the Company (the “Employment Agreement”); provided,
however, that if there is no Employment Agreement, or if the Employment Agreement does not define
what shall constitute a termination for “cause” (or a substantially similar term), then “Cause” for
purposes of this Agreement shall mean: (i) Employee’s material breach of this Agreement or any
confidentiality agreement between the Company and Employee; (ii) Employee’s failure or refusal to
comply with the Company’s Employee Manual, the Company’s Code of Business Conduct and Ethics, or
other policies or procedures established by the Company (iii) Employee’s appropriation (or
attempted appropriation) of a material business opportunity of the Company, including attempting to
secure or securing any personal profit in connection with any transaction entered into on behalf of
the Company; (iv) Employee’s



 









 




misappropriation (or attempted misappropriation) of any of the Company’s funds or material
property; (v) Employee’s conviction of, or the entering of a guilty plea or plea of no contest with
respect to a felony, the equivalent thereof, or any other crime with respect to which imprisonment
is a possible punishment; (vi) Employee’s willful misconduct or incompetence; (vii) Employee’s
physical or mental disability or other inability to perform the essential functions of his
position, with or without reasonable accommodation; or (viii) Employee’s death.




     1.4 “CCC” means the California Code of Civil Procedure.



     1.5 A “Change of Control” shall have occurred if, and only if:



          (a) any individual, partnership, firm, corporation, association, trust, unincorporated
organization or other entity or person, or any syndicate or group deemed to be a person under
Section 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”) is or becomes
the “Beneficial Owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 50% or more of the combined voting power of the Company’s
then outstanding securities entitled to vote in the election of directors of the Company; or




          (b) if those individuals who constituted the Board at the Effective Date cease to constitute a
majority of the Board as a result of, or in connection with, a proxy solicitation made by a third
party pursuant to Regulation 14A under the Securities Exchange Act of 1934; or




          (c) there occurs a reorganization, merger, consolidation or other corporate transaction
involving the Company (“Transaction”), in each case, with respect to which the stockholders
of the Company immediately prior to such Transaction do not, immediately after the Transaction, own
more than 50% of the combined voting power of the Company’s then outstanding securities entitled to
vote in the election of directors of the Company or of the securities of any other corporation
resulting from such Transaction; or




          (d) all or substantially all of the assets of the Company are sold, liquidated or distributed,
other than in connection with a bankruptcy, insolvency or other similar proceeding, or an
assignment for the benefit of creditors.




     1.6 A “Change of Control Termination” shall have occurred if Employee’s employment by
the Company, or any of its subsidiaries or affiliates, is terminated without Cause or the Employee
resigns in a Resignation for Good Reason, in either case within 12 months following the effective
date of a Change of Control.



     1.7 “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985.



     1.8 “Code” means the Internal Revenue Code of 1986, as amended.



     1.9 “Company Equity Plans” means the Company’s 1994 Stock Option Plan, 1998 Stock
Option Plan, 2000 Stock Option Plan, 2003 Equity Incentive Plan and 2005 Equity Incentive Plan,
each as may be amended from time to time, and any stock option agreements, award notices, stock
purchase agreements or other agreements or instruments executed and delivered pursuant thereto.



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     1.10 “Release” means a general release, in the form attached hereto as Exhibit
A, by Employee of all claims against the Company and its affiliates as of the date of the
Change of Control Termination.



     1.11 “Resignation for Good Reason” means a resignation based on:



          (a) a material reduction in Employee’s duties and responsibilities from those in effect upon
execution of this Agreement; or




          (b) a reduction by the Company in Employee’s Base Salary as of the date of this Agreement; or




          (c) a relocation of Employee’s place of work more than 50 miles without reimbursement of
reasonable relocation expenses.



An event described in this Section 1.11 will not give rise to a Resignation for Good Reason unless
it is communicated by Employee to the Company in writing and unless it is not corrected by the
Company in a manner that is reasonably satisfactory to Employee within 10 business days of the
Company’s receipt of such written notice.




     1.12 “Severance Payments” means severance pay in an amount equal to 24 months of Base
Salary, plus an amount equal to the greater of (A) the aggregate bonus payment(s) received by the
Employee in the Company’s preceding fiscal year or (B) the target bonus amount, such payments to be
paid in accordance with the terms in Section 2.1(b) below. Notwithstanding the foregoing, if the
tenure of Employee’s employment with the Company at the time of termination is less than one year,
then the bonus amount calculated under this Section 1.11 shall be pro rated for the partial year of
service.



     1.13 “Severance Period” means the 12-month period following a Change of Control
Termination.


2. Change of Control Termination.




     2.1 Payment upon Change of Control Termination. Subject to Sections 2.2 and 2.3, in
the event of a Change of Control Termination:



          (a) The Company shall promptly pay Employee all accrued but unpaid Base Salary and all accrued
but unused vacation time, each through the date of termination; and




          (b) The Company shall pay Employee the Severance Payments immediately following the Deferred
Payment Date, as defined below. Since at the time of this Agreement Employee will be a “specified
employee” as defined in Section 409A of the Code and one or more of the payments or benefits which
may be paid pursuant to this Agreement would constitute deferred compensation subject to Section
409A, no such payment or benefit will be provided until the date (the “Deferred Payment Date”)
which is the earliest of (A) the date which is six (6) months and a day after Employee’s
“separation from service” for any reason, other than death or becoming “disabled” (as such terms
are used in Section 409A(a)(2) of the Code), (B) the date of Employee’s death or on which Employee
becomes “disabled” (as such term is used in



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Section 409A(a)(2)(C) of the Code), (C) the effective date of a “change in the ownership or
effective control” of the Company (as such term is used in Section 409A(a)(2)(A)(v) of the Code) or
(D) the date such payments or benefits are no longer deemed by the Code to be subject to penalty
tax or interest. The provisions of this paragraph shall only apply to the extent required to avoid
Employee’s incurrence of any penalty tax or interest under Section 409A of the Code or any
regulations or Treasury guidance promulgated thereunder. In addition, if any provision of this
Agreement would cause Employee to incur any penalty tax or interest under Section 409A of the Code
or any regulations or Treasury guidance promulgated thereunder, the Company shall, upon the written
request of Employee, reform such provision to maintain to the maximum extent practicable the
original intent of the applicable provision without violating the provisions of Section 409A of the
Code and without creating additional cost for the Company; and




          (c) If Employee elects to continue insurance coverage as afforded to Employee according to
COBRA, the Company will reimburse Employee the amount of premiums incurred by Employee during the
Severance Period. Section 409A of the Code would be applicable to the reimbursement of COBRA
payments, then Employee will pay COBRA premiums until the Deferred Payment Date and then the
Company will reimburse Employee for all payments made by the Employee through such date.
Thereafter, the Company will pay COBRA premiums on Employee’s behalf through the remainder of the
Severance Period. Nothing in this Agreement will extend Employee’s COBRA period beyond the period
allowed under COBRA, nor is Company assuming any responsibility for Employee’s election to continue
coverage; and




          (d) The vesting of all Awards shall accelerate in full and all rights of repurchase of Award
shares shall immediately lapse; and




          (e) The Employee shall also be entitled to receive any additional benefits provided for under
the Employment Agreement in the event of a Change in Control or a Change in Control Termination.




     2.2 Employee Release. In consideration for the benefits set forth above in Sections
2.1(b), 2.1(c) and 2.1(d), following a Change of Control Termination, Employee shall promptly
execute and deliver the Release. The Company shall have no obligation to pay or grant the benefits
set forth in Sections 2.1(b), 2.1(c) and 2.1(d) if Employee does not execute and deliver the
Release, or if Employee subsequently revokes, or attempts in writing to revoke, any portion of the
Release.



     2.3 Other Benefits. In the event that the Employment Agreement provides for specific
benefits upon a Change of Control and/or a Change of Control Termination that are materially more
favorable to the Employee than like benefits set forth herein, then the Employee shall be entitled
to those benefits set forth in the Employment Agreement in lieu of the lesser like benefits set
forth herein.


3. Dispute Resolution Procedures. Any dispute or claim arising out of this Agreement shall
be subject to final and binding arbitration. The arbitration will be conducted by one arbitrator
who is a member of the American Arbitration Association (AAA) or of the Judicial Arbitration and
Mediation Services (JAMS). The arbitration shall be held in Orange County, California.




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The arbitrator shall have all authority to determine the arbitrability of any claim and enter a
final and binding judgment at the conclusion of any proceedings in respect of the arbitration.
Notwithstanding any rule of AAA or JAMS to the contrary, the provisions of Title 9 of Part 3 of the
CCC including Section 1283.05, and successor statutes, permitting expanded discovery proceedings
shall be applicable to all disputes that are arbitrated under this paragraph. The arbitrator shall
have all power and authority to enter orders relating to such discovery as are allowed under the
CCC. The party prevailing in the resolution of any such claim will be entitled, in addition to
such other relief as may be granted, to an award of all fees and costs incurred in pursuit of the
claim (including reasonable attorneys’ fees) without regard to any statute, schedule, or rule of
court purported to restrict such award.



4. At-Will Employment. Notwithstanding anything to the contrary herein, Employee reaffirms
that Employee’s employment relationship with the Company is at-will, terminable at any time and for
any reason by either the Company or Employee. While certain paragraphs of this Agreement describe
events that could occur at a particular time in the future, nothing in this Agreement may be
construed as a guarantee of employment of any length.



5. General Provisions.




     5.1 Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of California, without regard to conflict-of-law principles.



     5.2 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Company and its successors and assigns. Employee may not
assign, pledge or encumber his interest in this Agreement or any part thereof, provided, however,
that the provisions of this Agreement shall inure to the benefit of, and be binding upon Employee’s
estate.



     5.3 No Waiver of Breach. If either party should waive any breach of any provisions of
this Agreement, he or it shall not thereby be deemed to have waived any preceding or succeeding
breach of the same or any other provision of this Agreement. The rights granted the parties are
cumulative, and the election of one will not constitute a waiver of such party’s right to assert
all other legal and equitable remedies available under the circumstances.



     5.4 Severability. The provisions of this Agreement are severable, and if any
provision will be held to be invalid or otherwise unenforceable, in whole or in part, the remainder
of the provisions, or enforceable parts of this Agreement, will not be affected.



     5.5 Entire Agreement; Amendment. This Agreement, including Exhibit A, constitutes the
entire agreement of the parties with respect to the subject matter of this Agreement, and
supersedes all prior and contemporaneous negotiations, agreements and understandings between the
parties, oral or written (including the Prior Agreement), except those provisions of the Employment
Agreement expressly referred to herein. This Agreement may be amended or supplemented only by
writing signed by both of the parties hereto.



     5.6 Modification; Waivers. No modification, termination or attempted waiver of this
Agreement will be valid unless in writing, signed by the party against whom such modification,
termination or waiver is sought to be enforced.



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     5.7 Duplicate Counterparts. This Agreement may be executed in duplicate counterparts;
each of, which shall be deemed an original; provided, however, such counterparts shall together
constitute only one instrument.



     5.8 Interpretation. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. As
used in this Agreement, words of the masculine gender shall mean and include corresponding neuter
words or words of the feminine gender.



     5.9 No Mitigation. No payment to which Employee is entitled pursuant to Section 2.1
hereof shall be reduced by reason of compensation or other income received by him for services
rendered after termination of his employment with the Company.



     5.10 Withholding of Taxes. The Company shall withhold appropriate federal, state,
local (and foreign, if applicable) income and employment taxes from any payments hereunder.



     5.11 Drafting Ambiguities; Representation by Counsel. Each party to this Agreement
and its counsel have reviewed and revised this Agreement and the Release. The rule of construction
that any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement, the Release or any of the amendments to this Agreement.



* * *




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     In witness whereof, this Change of Control Agreement has been executed as of the date first
set forth above.



	 	 	 	 	 
	 	AVANIR Pharmaceuticals

 	 
	 	By:  	/s/ Keith Katkin
 	 
	 	 	Keith Katkin 	 
	 	 	President and Chief Executive Officer 	 
	 
	 	Employee

 	 
	 	/s/ Randall Kaye
 	 
	 	Randall Kaye, M.D. 	 
	 	 	 



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EXHIBIT A




GENERAL RELEASE





     This General Release (“Release”) is entered into effective as of                     , 200   ,
(the “Effective Date”) by and between Avanir Pharmaceuticals, a California corporation,
having its principal offices at [                    ] (“Company”) and [                    ], an individual
residing at [                    ] (“Employee”) with reference to the following facts:



RECITALS




     A. The parties hereto entered into a Change of Control Agreement dated                     , 200   
(“Agreement”), by which the parties agreed that in certain circumstances Employee would
become eligible for severance payments following a termination of service in connection with a
change in control and the reimbursement of certain insurance premiums in exchange for Employee’s
release of the Company from all claims which Employee may have against the Company.



     B. The parties desire to dispose of, fully and completely, all claims, that Employee may have
against the Company in, the manner set forth in this Release.



AGREEMENT




     1. Release. Employee, for himself/herself and his heirs, successors and assigns,
fully releases, and discharges Company, its officers, directors, employees, shareholders,
attorneys, accountants, other professionals, insurers and agents (collectively “Agents),
and all entities related to each such party, including, but not limited to, heirs, executors,
administrators, personal representatives, assigns, parent, subsidiary and sister corporations,
affiliates, partners and co-venturers (collectively “Related Entities”), from all rights,
claims, demands, actions, causes of action, liabilities and obligations of every kind, nature and
description whatsoever, Employee now has, owns or holds or has at anytime had, owned or held or may
have against the Company, Agents or Related Entities from any source whatsoever, whether or not
arising from or related to the facts recited in this Release. Employee specifically releases and
waives any and all claims arising under any express or implied contract, rules, regulation or
ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Americans with Disabilities Act, the California Fair Employment and Housing
Act, and the Age Discrimination in Employment Act, as amended (“ADEA”).



     2. Section 1542 Waiver. This Release is intended as a full and complete release and
discharge of any and all claims that Employee may have against the Company, Agents or Related
Entities. In making this release, Employee intends to release the Company, Agents and Related
Entities from liability of any nature whatsoever for any claim of damages or injury or for
equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim
might be based, is known or unknown to Employee. Employee expressly waives all rights under §1542
of the Civil Code of the State of California, which Employee understands provides as follows:



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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.


Employee acknowledges that he may discover facts different from or in addition to those that he now
believes to be true with respect to this Release. Employee agrees that this Release shall remain
effective notwithstanding the discovery of any different or additional facts.




     3. Waiver of Certain Claims. Employee acknowledges that he has been advised in
writing of his right to consult with an attorney prior to executing the waivers set out in this
Release, and that he has been given a 21-day period in which to consider entering into the release
of ADEA claims, if any. In addition, Employee acknowledges that he has been informed that he may
revoke a signed waiver of the ADEA claims for up to 7 days after executing this Release.



     4. No Undue Influence. This Release is executed voluntarily and without any duress or
undue influence. Employee acknowledges he has read this Release and executed it with full and free
consent. No provision of this Release shall be construed against any party by virtue of the fact
that such party or its counsel drafted such provision or the entirety of this Release.



     5. Governing Law. This Release is made and entered into in the State of California
and accordingly the rights and obligations of the parties hereunder shall in all respects be
construed, interpreted, enforced and governed in accordance with the laws of the State of
California as applied to contracts entered into by and between residents of California to be wholly
performed within California.



     6. Severability. If any provision of this Release is held to be invalid, void or
unenforceable, the balance of the provisions of this Release shall, nevertheless, remain in full
force and effect and shall in no way be affected, impaired or invalidated.



     7. Counterparts. This Release may be executed simultaneously in one or more
counterparts, each of, which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Release may be executed by facsimile, with originals
to follow by overnight courier.



     8. Dispute Resolution Proceedings. Any dispute or claim arising out of this Release
shall be subject to final and binding arbitration. The arbitration will be conducted by one
arbitrator who is a member of the American Arbitration Association (AAA) or of the Judicial
Arbitration and Mediation Services (JAMS) and will be governed by the Model Employment Arbitration
rules of AAA. The arbitration shall be held in Orange County, California. The arbitrator shall
have all authority to determine the arbitrability of any claim and enter a final and binding
judgment at the conclusion of any proceedings in respect of the arbitration. Any final judgment
only may be appealed on the grounds of improper bias or improper conduct of the arbitrator.
Notwithstanding any rule of AAA or JAMS to the contrary, the provisions of Title 9 of Part 3 of the
California Code of Civil Procedure (the “Code”) including Section 1283.05, and successor
statutes, permitting expanded discovery proceedings shall be applicable to all disputes



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that are arbitrated under this paragraph. The arbitrator shall have all power and authority
to enter orders relating to such discovery as are allowed under the Code. The party prevailing in
the resolution of any such claim will be entitled, in addition to such other relief as may be
granted, to an award of all fees and costs incurred in pursuit of the claim (including reasonable
attorneys’ fees) without regard to any statute, schedule, or rule of court purported to restrict
such award.




     9. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous
negotiations, agreements and understandings between the parties, oral or written.



     10. Modification; Waivers. No modification, termination or attempted waiver of this
Agreement will be valid unless in writing, signed by the party against whom such modification,
termination or waiver is sought to be enforced.



     11. Amendment. This Agreement may be amended or supplemented only by writing signed
by Employee and the Company.



	 	 	 	 	 
	 	 	 
	Dated:                                                        	
 	 
	 	Employee Name 	 
	 	 	 
	 




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